Abstract

Suspension and limitation on fundamental rights and freedoms are justified violations of constitutional
Rights. Temporary suspension of some fundamental rights and freedoms can be made on the ground
Of a state of emergency. Since most constitutional rights are not absolute, they can be limited on basis
Of national security, public safety, public moral, public order, public health, and similar grounds.
Although both suspension and limitation should comply with the requirements of necessity
And proportionality, they are completely different in their conception and application .Hence the main
Purpose of this thesis is to access whether Ethiopian government is effective in implementing and enforcing
The emergency directive and insure rule of law and access factor affecting enforcement directive in conducting
The study the researcher tries to employ pertinent laws with theoretical
And practical analysis thus my research is going to discuss problem or critics that is going to be arises
at national and international level while the directive of state of emergency enforced.followingto that
my I shall discuss state of emergency in international perspective and overview principle governing state of
emergency also Looking of state of emergency and the federal democratic republic Ethiopian constitution,
Then my Thesis going to discuss overview of current state of emergency directive the pros and cons on the
Whole Country socio economic and political situation finally conclude with recommendation and conclusion.

1
 INTRODUCTION

State of emergency refers to state siege, state of exception, suspension of guaranty, suspension
of right; derogation of state alarm, state of national necessity 1. It is the catch words of
contemporary word beginning from 20th century .the growing importance of fundamental human
right in international law have immense contribution in advocating a necessary and restricted
power of the state of emergency as a mode of constitutional order of one independent country.2

The doctrine of state emergency is about an adjustment of public order, and human right in a
rational maner.To this end, the constutional system of a given state need to legitimize modes
emergency of state which grant the power to tranisger or violate human right in defense of public
order or national security with an adequate restraining mechanism that provide substantial, and
procedural limitation not to be exceed together with strong ,and trust worthy inistutional
safeguard to maintain the limitation and control abuse.3

Human right could be restricted or violated legally through derogation means using power to
declare state of emergency during an exceptional emergency situation, and limitation measure
which subject right to restriction of one sort of another at all times that apply in daily life while
derogation measure intend to save the life of state and maintain the constitutional order from the
danger it face at particular period ,limitation of a right are there with purpose of having a normal
situation at all time without which all periods may be period of exceptional threat. Hence both
measure as modes of exerting emergency of state for the maintenance of peace and survival of
constitutional order which is foundation public interest providing that there are restraining safe
guards against its abuse4 .We will try to sketch on state of emergency, limitation of right, and
militant democracy as constitutive part of limitation as modes of conistutional reason of state.

The declaration of state emergency has its negative and positive implication on the country when
we discover it from several directions; the negative effect of state emergency can be restriction
of human right and violation of human right such as the right to life, security of person and

1
Blacks law dictionary
2
Art 64 of the siracusa principles reads in public emergency the rule of law shall still prevail derogation is
authorized and limited prorogation to respond adequately to a treat to the life of the nation the derogation shall
have the burden of justifying its action under the law iccpr 19985 siracusa principle

3
Vicy Jackson and mark tushet ,comparative constitutionals law 2 nd edition foundation press 2006
4
Fitzpatric human rights on human right

2
liberty etc. as well as these, several democratic right does not be respected for instance the right
to movement, the right to thought ,opinion, and expression in addition to these the command post
might use excess power than declared on emergency declaration proclamation

Positive effect state of emergency is restoring peace and security of the country in the previous
position and continuing the country social economic political development and enable, the
government to be believed by the people on maintenance peace and security to sustain
development

BACKGROUND OF THE STUDY

State emergency power as mode of constitutional reason of state allows for the state to take a
measure to save its life with a rational adjustment of democratic value at the very heart of
constitutional state, and without abusing it toward the ruler’s interest. To this end, the
international human right instrument and their respective interpretative minimum standard have
provided a number of substantive and procedural principles to govern state of emergency
regime.5

As nessserly and primary value, the state of emergency allows state to measure which insure its
survivassl when it face with a threat, both internal and external, for its life .The question as to the
extent of measure to be taken to preserve the security of state. Constitutional state have legal
fence which formulate the power limit of government that it must not tranisgress,and which
warns it will be safe in its authority so long as it does not intrude them6

Some major international human right instrument and principles have recognized the power to
take a derogative measure of suspending rights to save the state from an exceptional treat taking
into account certain substantive principle and procedural safe guards which help to prevent the
government in order to abuse the power using it as a pretext. Among them include: the existence
exceptional treat to the security of state and its people which cannot be averted trough ordinary
law and order; strict necessity and proportional toward the exceptional treat to the security of the
state and its people keeping the non derogable right in tact during emergency 7 ;Appling the
derogative measure in non-discriminatory manner ;the derogation must not be incompatible with
5
Nicolas haysom ,state of emergency supra note
6
ibid
7
id

3
the state obligation under international law; making an official declaration of the existence of
emergency situation threatening the life of nation ;the duty to notify is up on the state availing
itself of emergency to other member states of relevant covenant ;and securing the legislative and
judicial safe guard to control abuse of emergency power.8

To sum up, my research going to discuss constitutional government during state of emergency
shall have to regulate the extent of state of emergency measure for its survival, giving due care
for fundamental rights, and freedoms establishing a real custodian of it in which the judiciary is
believed to be..

Statement of problem

As it is enunciated international, regional, national laws; human rights are universal and
applicable regardless of place, color, religious’ and political attitude racial personal status and
the like, Thus nation under emergency are governed by both national and international human
right instruments. The FDRE constitution article 93(4) have listed non derogable right of
political as well as civil rights, for instance article 18 of FDRE constitution says prohibition of
inhuman treatment.9

ICCPR under substantive non derogable right are listed rights such as the right to life 4(2), art 6
freedom from torture or cruel, inhuman degrading treatment or punishment art 7.Concerning the
treatment of individual right during declaration of state of emergency the FDRE constitution has
limited and restricted the power of the citizen in distinct from normal course of the
country.Currently the Ethiopian government has declared state of emergency and to its
implementation the council of minister has issued a law declaring the state of emergency and the
content therof10. However, whether this emergency law is in accordance with international
human right laws and the FDRE constitution is questionable. This research has the aim of
examining this declaration in light of international, regional and the FDRE constitution. In
particular the paper will address.

 whether the Declaration of emergency affects socio economic and political right of
citizens
8
ibid
9
Article 93 of FDRE conistutution
10
ICCPR article 4(2)

4
  whether Emergency declaration Measure goes beyond the extent strictly required by the
situation;
 Whether powers given to the command post under the emergency declaration is
legitimate in light of international human right instruments and FDRE constitution
 Whether The goal of emergency declaration and command post measure are related
 Whether the declaration of state of emergency consistent with principle of legality
proportionality,necessity
 Whether geographic extent of state of emergency is legitimate

OBJECTIVE OF THE STUDY.

General objective of this research is to examine the state of emergency declaration in light of
international human right instruments and the FDRE constitution.
Specific objective; the paper will have the following specific objective to achieve the above
General objective:
1. Exploring the extent of emergency of state and its consequences
2. To come up with appropriate organ to take necessary measure to respond to crisis in case of
emergency crisis occurred while crisis on going
3. Determine the of advantage of the current state of emergencies in the Ethiopia
3. Determine the dis advantage of current state of emergencies in Ethiopia
4. Identifying the power given to the command post under the emergency declaration in light of
international and domestic human right laws.
SIGNIFICANCE OF THE STUDY

The study has significance in creating awareness on people, political actors in the country so that

they will contribute for the survival of constitutional order .To make specific it will have the

following advantages:

 It enables political forces and policy framers in the country to be armed with the

knowledge as to the proper and legitimate state of emergency so that they will struggle to

ward its achievement

5
  It will come up with suggestion which help for our constructional order to survive and

our democracy to be stable and long standing

 It will serve a bench mark for further research up on such area

 It enables the people to become aware about pros and cons of emergency declaration by

state

Scope of study

The paper will cover the pros and cons of emergency declaration on Ethiopia and the measure to
be taken by the state to save its life, and the limitation of measure on the ground of human right
protections, and the extent, reason of taking of emergency declaration on the country. The
emergency declaration has both external and internal aspect ,thesis is limited in studying internal
aspect of emergency declaration with regard to adjustment of power and right .To these end the
paper will cover state of emergency, pros and cons in general, limitation of right in particular

Limitations of the Study

the researcher of this thesis expects to be faced with a number of limitations and
challenges. Although every research has its own limitations, it is hardly to state
entire list of elements, which have been faced with as limitations of this research.
Material Challenges: although it is essential to get different sources that serve as
secondary qualitative or quantitative data, the Faculty Library does not have enough
reading materials, and Internet service that are conducive and easily accessible to the
researcher. The Law Library does not have reserved place and proper access to website
Financial Challenge: Shortage of financial provision to cover the existing cost of
Access to important primary documents of the RECs is thus, the major challenge that
contributes for the limitations of the study. Though efforts to collect primary documents
were made, to some extent, reliance is placed on secondary materials available at the
websites of the institutions.

REASERCH METHEDOLOGY

In order to successfully accomplish this thesis, the study place emphasize on analysis of the

6
relevant available literatures it specifically relies on examining international and regional human
right instruments, general comments, books research studies, related with the area of the study,
journals and academic articles and domestic laws that has some relevancy to the study. In
addition, for further data’s and information’s the researcher would consult internet sites. The
axiomatic of other countries experience and more typically the study is highly depend on case
laws offered by international and regional human right monitoring bodies.

As far as practical source is concerned the study is purely a desktop research and hence will not
employ field observations to examine stakeholders.

ORGANIZATION OF THE STUDY

The paper will be organized in to five chapters. The first chapter is an introductory part that will
deal with the points as to why and how the research is to be conducted. The second chapter will
be expound the state of emergency on international perspective the third chapter will explore
state emergency in federal democratic republic of Ethiopia .The fourth chapter will analyses pros
and cons of current state of emergency In light of the international and national legal instrument

Unit Two

7
2. STATE OF EMERGENCY: AN INTERNATIONAL PERSPECTIVE

2.1 Scope of Application

All the major international and regional human rights instruments, with the notable exception of
the African Charter on Human and People’s Rights (hereinafter the ACHPR), recognize the right
of States to suspend human right norms contained therein in cases of exigencies that threaten the
life of the nation.11Similarly, these instruments lay down conditions and requirements for a valid
derogation, as well as enumerate certain rights that may not be suspended or derogated even
during the gravest of emergencies.

These instruments, however, differ both in their use of terminology of the situations that justify
derogation and their listing of non-derogable rights. The ICCPR refers to “public emergency
which threatens the life of the nation,” the European Convention on Human Rights (hereinafter
the ECHR) to “war or other public danger, or other emergency that threatens the independence or
security of a State Party.12All the same, the derogation clauses in the above instruments are
“essentially equivalent in criteria, theory, and purpose.”

State of emergency trace their origin back to the Roman Empire and found their way almost in
all contemporary political systems and international human rights instruments. They portray one
of the instances of a “head-on collision between state sovereignty and national security on the
one hand, and the growing international involvement in protecting individual human rights
against state encroachment on the other hand.” In order to deflect this tension, both international
human rights and national constitutions or subsidiary laws lay down provisions, known as
derogation clauses, which regulation exigencies.

Accordingly, ICCPR recognizes the right of States Parties to derogate from their treaty
obligations in certain circumstances. Article 4 states that:

11
Nicholas Haysom, States of Emergency in a Post-apartheid South Africa 21.
12
Article 4 of the ICCPR, International Covenant on Civil and Political Rights, opened for signature Dec. 19, 1966,
G.A. Res. 2200, 21 U.N. GAOR Supp. (No. 16) at 52, U.N. Doc. A/6316 (1967), 999 U.N.T.S. 171; Article 15 of the
ECHR, European Convention for the protection of Human Rights and Fundamental Freedoms, done Nov. 4, 1950,
Eur. T.S. No. 5, 213 U.N.T.S. 221, and Article 27 of the IACHR, American Convention.

8
 1. In time of public emergency which threatens the life of the nation and the existence of
which is officially proclaimed, the States Parties to the present Covenant may take
measures derogating from their obligations under the present Covenant to the extent
strictly required by the exigencies of the situation, provided that such measures are not
inconsistent with their other obligations under international law and do not involve
discrimination solely on the ground of race, color, sex language, religion or social origin.
2. No derogation from articles 6, 7, 8 (paragraph 1 and 2), 11, 15, 16 and 18 may be made
under this provision.
3. Any State Party to the present Covenant availing itself of the right of derogation shall
immediately inform the other States Parties to the present Covenant, through the
intermediate of the Secretary-General of the United Nations, of the provisions from
which it has derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on the date on which it
terminates such derogation.

Similarly, Article 15 of the ECHR states that “in time of war or other public emergency
threatening the life of the nation any High Contracting Party may take measures derogating from
its obligations under this Convention to the extent strictly required by the exigencies of the
situation.13
Article 27(1) of the ACHR states that:
[1]In time of war, public danger, or other emergency that threatens the independence or
security of a State Party, it may take measures derogating from its obligations under the
present Convention to the extent and for the period of time strictly require by the
exigencies of the situation, provided that such measures are not inconsistent with its other
obligations under international law and do not involve discrimination on the ground of
race, color, sex, language, religion, or social origin.

As opposed to the above three human rights instruments, the ACHPR does not have a derogation
clause. It, however, is full of limitations or ‘claw back’ clauses that authorize States to suspended
most of the rights in the Charter. 14 These clauses give wide latitude for States, under normal
13
Supra note 8 iccpr 4
14
21 See for instance, ARTICLES 6, 8, 9(2) AND 12(4) OF THE charter. The enjoyment of some of the rights in the
Charter is “subject to law and order,” “within the law,” if one “abides by the law,” or “subject to the obligation of

9
circumstances (even in the absence of emergencies), to restrict the rights and freedoms enshrined
under the Charter in so far as such restrictions are done in accordance with domestic laws of the
States.15Thus, it is perfectly legal for a government takes away the rights recognized by the
Charter by enacting a domestic law.

2.2 PROBLEM OF DEFINING STATES OF EMERGENCY

It is impossible to foresee or to define the extent and variety of national

exigencies, and the correspondent extent and variety of the means which
may be necessary to satisfy them. The circumstances that endanger the
safety of nations are infinite, and for this no constitutional shackle can
wisely be imposed on the power to which the care of it is committed.16

As the above quotation sums it up, defining state of emergency has proved to be a rather
daunting task. In the words of the International Law Association, it “is neigther desirable nor
possible to stipulate what particular type or types of events will automatically constitute a public
emergency within the meaning of the term; each case has to be judged on its own merit taking
into account the overriding concern for the continuance of a democratic society.” 17The word
emergency is an “elastic concept, “capable of covering a very wide range of situations and
occurrences including such diverse events as wars, famines, earthquakes, floods and epidemics.
The number, diversity and complexity of emergency regimes that exist at any given point in time
as well as the profusion and inexactitude of terminology employed in different legal systems
make the term not amenable to a precise and a single definition that is acceptable on both sides
of the Atlantic

Nonetheless, “state of emergency” has been defined in tediously many ways. First, Article 4 of
the ICCPR refers to a public emergency as a calamity that “threatens the life of a nation,” while
the European Commission defined “public emergency” as “a situation of exceptional and
imminent danger or crisis affecting the general public, as distinct from particular groups, and

solidarity.”
15
Rosalyn Higgins, Derogation under Human Rights Treaties, 48 BYIL, 281, 281(1978) [hereinafter Higgins:
Derogation].
16
Ibid
17
Ibid.

10
constituting a threat to the organized life of the community which composes the State in
question.”18

Similarly, the Paris Minimum Standard of Human Rights prepared by the International Law
Association (ILA) defines states of emergency as “an exceptional situation of crisis or public
danger, actual or eminent, which affects the whole population of the area to which the
declaration applies and constitutes threat to the organized of the community of which the state is
composed.

It is possible to make distinction between de jure and de facto states of emergency. De jure
emergencies are emergencies put in place after all the legal and institutionalrequirements for
their declaration and implementation under domestic law and international human right
instruments are fulfilled. The second type of emergencies, de facto, are “undeclared, emergency
regimes and ambiguous situations,They are “situations of a purely political nature,” (in
government) which cannot be justified in terms of the constitution or previously established
laws. de facto emergencies usually arise when a government resorts to its emergency powers
without complying with the legal or constitutional preconditions for the declaration of states of
emergency, or when the measure are extended beyond the formal termination of a declared states
of emergency.19 In some instances, a state emergency that was declared in full compliance with

All the conditions for its declarations may outlive the period for which it was intended and
easily20 becomes a perpetual states of emergency.

2.3Principles governing states of emergency

18
Lawless v. Ireland, 1 Eur. Ct. H.R. (ser.B) at 56 (1960-1961) See also Lawless (Court), 3 Eur. Ct. H.R. (ser.A 1960-
1961)
19
29 Art.1(b) of the Paris Minimum Standards of Human Rights Norms in a State of Emergency. The full text of the
Standard appears in Richard B. Lillich, The Paris Minimum Standards of Human rights
20
States of Exception in Turkey: 1960-1980 in ICJ: States of Emergency,

11
 As discussed above, some of the major international human rights treaties recognize the right of
States parties to derogate from some of their obligations under the treaties in exceptional
situations. Such a right is meant to enable governments to save the state, not a specific
government, from destruction as a result of exigencies. The treaties, however, do not give a
cartleblancheto the States parties. Instead, they impose a number of conditionality’s for the
legitimate exercise of the right of States to restrict some of the rights contained therein. These
preconditions and requirements are intended to strike a balance between the needs of the State
and the rights and freedoms of individuals as most of their rights are protected even during
exigencies. These principles which “form the core of the ‘legal regime of the derogation
clauses’…function to minimize the danger of usurpation or abuse of the derogation power by
establishing a set of criteria by which any particular exercise of that power may be evaluated.”

The five substantive principles require that for valid states of emergency, the government which
intends to resort to emergency powers must prove a) the existence of an exceptional threat to the
security of the state or its people; b)the emergency measure that is going to be taken is
proportional to the threat posed; c) that there will be no derogation from certain rights and
freedoms, known as non-derogable rights; d) that the emergency measures are not going to be
. used in a discriminatory manner; and e) the compatibility emergency measures with the State’s
other international obligations. We may sketch each of these principles as follows.21

2.4. Overview of the Principles Governing Derogation

2.4.1 Strict necessity and proportionality

Despite the fact that there is a difference in phraseology, international human rights instruments
require that an exceptional threat that “threatens the life of the nation” must exist before a State
could be allowed to suspend rights and freedoms. The exigency must “imperil some fundamental
elements of statehood or survival of the populations, be provisional or temporary in nature, be
imminent, and be of such character that it threatens the nation as a whole. Some of the exigencies
include, but are not limited to, public health threats, economic calamities, natural disaster, war,

21
UN & International Law Association, Human Rights in the Administration of Justice: A Manual on Human Rights
for Judges, Prosecutors and Lawyers (Professional Training Series No. 9, Chapter 16, 2003) available at
http://www.unhchr.ch/pdf/CHAPTER_16.pdf at 821 based on article 4 of the ICCPR article 15 ECHR and article 27
of AMERICAN convention.

12
internal or external armed conflict, acts of subversion and insurrection, and “anything that put the
security of the State in peril.22

The derogating state has to demonstrate that the measure it could have taken under ordinary laws
would not have been sufficient to meet the danger posed by the exigencies. In Ireland v. United
Kingdom, the European Court of Human Rights held that the U.K. was “reasonably entitled to
consider” that the measures that were available under ordinary laws were not suitable or
adequate to meet the danger posed by the IRA terrorist activities. The Court also considered the
question in the Lawless case and ruled that “the application or ordinary law had proved unable to
check the growing danger which threatened the Republic of Ireland.”23

The measures taken to avert the crisis should also be proportional to the threat posed by the
crisis. Hence, suspension of rights and freedoms of citizens should be limited to the extent
strictly required by the situation on the ground. The non-derogation clauses of the ECHR and the
ICCPR state that restrictions placed on rights and freedoms in times of public emergency must
be limited “to the extent strictly required by the exigencies of the situation.” Thus, “emergency
power cannot be used to destroy the guaranteed rights altogether or to impose
unwarrantedlimitations on their exercise. In other words, the principle of proportionality
proscribes unnecessary suspension of specific rights, greater restrictions on those rights than
necessary, or the unnecessary extension of the geographical area to which the state of emergency
applies.”24

Similarly, the emergency measures taken by a derogating State must be connected to the
emergency, i.e., they must be prime facie suitable to reduce the crisis and must be commensurate
with the severity of the threat posed. Implicit in the element of severity is the requirement or
restricting the measures to areas that are affected by the emergency and only to the extent
necessary. According to the Human Rights Committee’s General Comment on Article 4 of the
ICCPR, the requirement of proportionality “relates to the duration, geographical coverage and

22
Oraa: Human Rights, supra note 3, at 29; Chowdhury: Rule of Law, and Derogation, page 287.
23
Mackdonald: European convention,page 233; Quigley: Are There Limits,L.C. Green, Derogation of Human Rights
In Emergency Situations
24
Higgins Derogation, page at 287

13
material scope of the state of emergency and any measures of derogation resorted to because of
the emergency.25 The Human Right Committee added that:

the mere fact that a permissible derogation from a specific provision may, of
itself, of itself , be justified by the exigencies of the situation does not obviate
the requirement that specific measures taken pursuant to the derogation must
also be shown to be required by the exigencies of the situation. In practice, this
will ensure that no provision of the situation. In practice, this will ensure that no
provision of the Covenant, however validly derogated from will be entirely
inapplicable to the behaviors of the State Party. When considering States
Parties’ reports the Committee has expressed its concern over insufficient
attention being paid to the principle of proportionality.

The principle of proportionality, thus, requires States to provide careful justification not only for
their decision to proclaim a state of emergency but also for any specific measures based on such
a proclamation. It States purport to invoke the right to derogate from the Covenant during, for
instance, a natural catastrophe, a mass demonstration including instances of violence, or a major
industrial accident, they must be able to justify not only that such a situation constitutes a threat
to the life of the nation, but also that all their measures derogating from the Covenant are strictly
required by the exigencies of the situation.26

In the opinion of the Committee, the possibility of restricting certain Covenant rights, for
instance, freedom of movement (article 12) or freedom of assembly (article 21), is generally
sufficient during such situations and no derogation from the provisions in question would be
justified by the exigencies of the situation.

As the European Human Rights Court ruled in the Lawless case, real and effective safeguards
must also be provided in order to curtail any possible abuse of emergency powers. According to
the Court, the inclusion of a number of safeguard measures in the Emergency legislation (Act)
and its subsequent amendment, limited the acts of the government to those that are strictly
necessary to address the situation. The Court also emphasized the importance of the supervision

25
General Comment No. 29, at 2 Para. 2; Chowdhury: Rule of Law, page 103; Macdonald: European convention,
26
General Commne No. 29, at 2-3 Para. 4

14
by the Irish Parliament, which possessed the power to revoke the declaration of emergency by
receiving detailed information about the enforcement of the Act. The safeguards provided by the
Act were deemed to be of particular importance in determining that the measures taken by the
government were “strictly required by the exigencies of the situation.

2.4.2. Non-discrimination

The principle of non-discrimination requires that emergency measures adopted by the derogating
State should not entail discrimination solely on the basis of race, color, sex, language, religion or
social origin or any other status. Article 4 of the ICCPR stipulates that in time of public
emergency which threatens the life of the nation, the State parties to Covenant may take
measures derogating form their obligation under the Covenant to the extent strictly required by
the exigencies of the situation, provided that such measures do not involve discrimination solely
on the ground of race, religion, sex, ethnic group, political belief or other status. Article 15of the
ECHR does not contain a specific prohibition against discrimination in the application of
emergency measures. Under Article 1 of Protocol 12 to the Convention, however, it is unlawful
for a High Contracting Party to discrimination on the basis of the above-mentioned grounds.

It should be stressed that the prohibition of discrimination under Article 4 of the ICCPR is in
addition to the stipulations under Articles 2(1) and 26. According to Prof. Grossman, “[t] the
multiple reference[s] to this prohibition, not unusual in international instruments related to the
protection of human rights, serve to codify what is already a fundamental principle of jus cogens:
the total proscription of any form of discriminatory treatment based [he above grounds.]Besides,
to the extent that a High Contracting Part to ECHR is also a State Party to the ICCPR, derogatory
measures that discriminate based on those grounds would be a violation of the principle of
consistency incorporated under Article 15 of the ECHR.27

2.4.3. Compatibility with other Obligations

According to the principle of consistency or compatibility, states may derogate from human
rights norms provided that such measures are not inconsistent with their other obligation
undertaken under international law. This criterion is intended to create compatibility,

27
ICCPR art 4,2(1),26

15
concordance and complementarity among the different obligations of the derogating State under
international law and maintain better protection of human rights in crisis situations. Both under
Article 15(1) of the ECHR and Article 4 of the ICCPR, a State may suspend rights only if the
measures it has taken are “not inconsistent with its other obligations under international law.
Hence, the derogating State has to make sure that the emergency measures it takes are in
conformity with its obligations under the particular human rights treaty to which it is a party and
other international law norms. Thus, the obligation of consistency (compatibility) may have the
effect of expanding the list of non-derogable rights discussed below. 28The requirement that the
right of states to suspend rights should be compatible with its other international law obligations
reflects the overlap and divergence between international human rights law and other systems of
international law in general and international humanitarian law norms, such as the Geneva
Conventions in particular. The four Geneva Conventions and their Additional Protocols are not
subject to suspension even in case of emergency, “since the very purpose of their adoption was
to provide rules to govern situations of armed conflict.Anoted scholar emphasizes the
complementary and non-exclusiveness natural of the protective norms of international law,
especially international human rights law and international humanitarian law norms in states of
emergency. He argues that:Ideally, there should be a continuum of norms that protect human
rights in all situations, from international armed conflicts at one end of the spectrum to situations
of non-armed internal conflicts at the other. In every situation, either there should be a
convergence of humanitarian or human rights norms, or at least one of these two systems of
protection of human rights should clearly apply

2.5. Non-Derogable Rights

2.5.2. Substantive Rights

Even if a State declares emergency in full compliance with the aforementioned conditions, there
are certain “core” human rights norms from which no derogation is allowed. Stated in simple
terms, the principle of non-derogability prohibits States from suspending the rights that are
specifically mentioned as non-derogable even under the gravest states of emergency. According
to this principle, even in situation of a state of emergency, there are certain fundamental rights
and freedoms which can never be suspended or derogated from.

28
ECHR,article 15 and article 4 ICCPR theory and practice of the eropean convention on human rights

16
The list of these rights differ from treaty to treaty and, as we shall see, there is a general trend of
expanding this list although the proposals have not yet attained universal acceptance. The non-
derogable rights that are listed under Article 4(2) of the ICCPR are: Article 6(the right to life),
Article 7(freedom from torture or the cruel, inhumane or degrading treatment or punishment),
Article 8 (prohibition against slavery or to be held in servitude), Article 11 (imprisonment for the
inability to discharge contractual obligation), Article 15 (prohibition against ex-post facto
criminal law), Article 16 (the right to be recognized as a person before the law) and Article 18
(freedom of thought, conscience and religion)29. In contrast, under Article 15 of the ECHR,
Article 2 (the right to life), Article 4(1) (prohibition against slavery or sevitude), and Article 7
(non-retroactivity of criminal laws) are the only non-derogable rights. Article 3 of Protol 6 and
Article 2 of Protocol 13 to the ECHR also prohibit derogation under Article 15 of the
Convention.

As can readily be observed, the above two human rights treaties recognize, in common, four
rights as non-derogable, namely, the right to life, the right to be free from torture and other in
human or degrading treatment or punishment, the right to be free from slavery or servitude, and
the rule of no ex post facto criminal laws. According to Jamie Oraa these four rights have
attained the status of jus cogensnorms of international law30.

2.5.3. Procedural Safeguards

Article 4(1) of the ICCPR makes it a requirement that a State which wishes to suspend rights and
freedoms has to first “officially proclaim” the existence of the emergency threatening the life
ofthe nation. In other words, the principle of proclamation proscribes of State’ resort to
emergency measures without a prior official proclamation of a state of emergency.31

The official proclamation of a state of emergency serves a number of important purposes. First, it
prevents an arbitrary use of emergency powers in events that do warrant suspension of rights. By
compelling States to make the existence of emergency public, the principles tries “to reduce the
incidence of de facto states of emergency by requiring states of follow formal procedures set
forth in their own municipal laws. Official proclamation by the political organs of a state, its
29
ICCPR article 4(2),6,7,8,11,18
30
ECHR 15,16,
31
Article 4 of ICCPR

17
legislature and executive, has the important effect of publicizing the existence of the crisis and of
possible derogations from normal standards. According to the UN Human Rights Committee, the
official proclamation of states of emergency:32

[I]s essential for the maintenance of the principles of legality and the rule of law
at time when they are most needed. When proclaiming a state of emergency with
consequences that would entail derogation from any provision of the Covenant,
States must act within their constitutional and other provisions of law that govern
such proclamation and the exercise of emergency powers; it is the task of the
Committee to monitor that the laws in question enable and secure compliance
with article 4.

Secondly, the official declaration of emergency notifies the population as to “the exact material,
territorial and temporal scope of the application of emergency measures and their impact on the
exercise of human rights Thirdly it also helps for domestic supervision by the legislative and
judicial organs of the government

As an extension to the requirement of public declaration of emergencies, states are required to

inform, in a timely manner, the other contracting parties to the treaties that they are temporarily
unable to discharge some of their treaty obligations. In order to check whether derogations from
human rights are necessary and proportional to the danger posed by the exigencies, derogations
are “subject to international scrutiny and review.”In line with this, both the ICCPR and ECHR
require States Parties to notify he Secretary General the declaration and termination of states of
.
emergency.33

Article 15(3) of the ECHR requires that a derogating State “shall keep the Secretary General of
the Council of Europe fully informed of the measures which is has taken and the reasons
thereof.” High Contracting parties are obliged to notify the Secretary General when derogation
ceases.34

32
John f .hart man working paper for commites of experts on article 4 of derogation provision
33
Art. 15(3) of the ECHR
34
MARE J. BOSSUYT, GUIDE TO THE TRAVAUX PREPARATOIRES OF THE INTERNATIONAL CONVENTION ON CIVIL
AND POLITICAL RIGHTS 97(1987)

18
The purpose of notification is to inform the other Contracting States to the instruments and the
organ entrusted with the supervision of the instruments. A Commentary on the ICCPR states that
derogations are “a matter of gravest concern and the States parties have the right to be notified of
such situations so that they will be informed of “what the situation of the derogating state is in
respect of the treaty, and accordingly to be able to exercise their own rights.35

The ICCPR and ECHR do not set specific time limits within which the State invoking the right
to derogate has to notify the other Contracting Parties. In the Lawless case, Ireland’s notification
of the Secretary General about the measures it had taken derogating from the ECHR within
twelve days was considered “sufficiently prompt.36

CHAPTER THREE

3.State of emergency and the FDRE constitution

35
Article 15(3)
36
Lawless case, 1 Eur. Ct. H.R. (Ser.A)(1961) at 43

19
This Part examines the Ethiopian constitutional law concerning human rights and states of
emergency. It explains the procedures of declaring states of emergency, the constitutional
safeguards against potential abuse of emergency powers, non-derogable rights and the role of the
Ethiopian judiciary, if any, in limiting the emergency powers of the government. It also attempts
to identify the shortcomings in the Ethiopian constitutional framework in light of the generally
accepted international norms discussed in the earlier sections.

3.1. Constitutional background

In May 1991, the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition of
mainly ethnic-based rebel groups came to power by overthrowing the military junta that ruled the
country for almost two decades. In the following month, EPRDF held a national conference that
established a transitional government and endorsed a transitional period Charter, which had only
twenty provisions, envisaged a nation of a multi-party democracy and incorporated certain basic
constitutional principles including guarantee of equal rights, self-determination of all people,
enduring peace and stability by bringing to an end all hostilities, redressing regional imbalances
as well as establishing accountable government, rebuilding the country and restructuring of the
state.

In 1994, the Council of Representatives endorsed a draft constitution that the Constituent
Assembly, elected by universal suffrage, adopted in December of 1994. The constitution came
into force in August 1995 and established an ethnic based state structure and dividing powers
and their exercise between the Federal and state governments.37A document of 11 chapters and
106 articles, the 1995 FDRE Constitution is the fourth written constitution in the political history
of Ethiopia.

The Constitution established a bicameral legislative organ composed of two houses, the House of
Peoples’ Representative (HOPR) and the House of the Federation (HOF), at the Federal
level.38Despite the stated bicameral structure of the parliament; it is only the HOPR that has the
supreme legislative decision-making power in matters that are assigned to the Federal

37
The Transitional Government of Ethiopia, The Transitional Period Charter of Ethiopian No. 1 of 1991,
NegaritGazetta, Year 50, No1, Preamble
38
106ETH. CONST. art. 53

20
government.39 The HOF has a very limited role in the law-making process.40 The HOF is,
however, entrusted with very important tasks including the interpretation of the Constitution,
deciding on issues relating to the right of ethnic groups to self-determination including and up to
secession, and deciding the instances in which the federal government has to intervene in the
status.41In interpreting the Constitution, the HOF is assisted by the Council of Constitutional
42
Inquiry (CCI), which is composed of legal experts. The CCI is mandated to investigate
constitutional disputes and submit its recommendations to the HOF for a final decision.

The Council is composed of eleven members, six of whom should be legal experts with proen
professional competence and high moral standing.43 They are recommended by the HOPR for
appointment by the President of the Republic. The remaining three members are persons
designated by the HOF.44 The CCI is presided over by the President of the Federal Supreme
Court with the Vice President of the same court as its vice president.

The Constitution embraces a rigid form of amendment so that human rights provisions will not
be watered down by subsequent constitutional amendments. According to Article 105,
amendment of human rights provisions requires majority vote of all state legislatures as well as
two third majority vote of both the HOPR and the HOF, whereas amending other provisions
requires two-third majority votes of the joint session of the HOPR and HOF along with majority
votes in two-third of the state legislatures.45

Nearly one-third of the text of the Constitution is devoted to fundamental human rights and
freedoms. These are categorized as “Human Rights” and “Democratic Rights” and, under Article
13 (2), “rights and freedoms” are to be “interpreted in conformity with the principles of the
Universal Declaration of Human Rights, the International Covenants on Human Rights and other
international instruments ratified by the country. In addition, Article 9(4) states that “[a]ll
international agreements ratified by Ethiopia are an integral part of the law of the land.”

39
The only instances in which the HOF participates in law making process are during constitutional amendment as
per art.104
40
ETH.CONST. art. 62(9)
41
ETH.CONST. art. 82-84
42
ETH.CONST. art. 82(2) (c)
43
ETH.CONST. art. 82(2) (d)
44
ETH.CONST. art. 82(2) (a) and b
45
Twibell: Ethiopian Constitutional Law,

21
Moreover, the Constitution also establishes twin human rights institutions, namely, the Human
Rights Commission and the Office of the Ombudsman.

There are differing opinions concerning the incorporation of such detailed provisions in the
FDRE Constitution. For instance, according to Fasil Nahum, the Legal Advisor to the Ethiopian
Premier, “the clear message of the Constitution is that it is serious with the respect for human
rights. Some others, however, very much doubt the significance of such detailed human rights
provisions. Professor Minasse Haile for instance, asserts that “the fate of human rights in
Ethiopia is a dim one. He adds that “government’s verbal commitment to human rights and
democracy is merely designed to tranquilize donor governments into disregarding ist continuing
violations of human rights.

Another writer considers the human rights provisions of the Constitution as “… too specific on a
particular right, yet too vague and general to serve as a proper measuring guide for
implementation.

3.2. Declaration of State of Emergency

There are two major models for declaring a state of emergency: the parliamentary and the
presidential or executive models. As the name indicates, in the parliamentary model, the
prerogative to declare a state of emergency is vested in Parliament, whereas in the executive
model, the power to declare a state of emergency is vested in the chief executive, the president or
the prime minister.46

Within the parliamentary system, there are certain variations. In some instance, parliament may
be required to follow more stringent procedures than is the case with ordinary legislation, or it
may have to consult the executive branch before it decides on state of emergency cases. When
parliament is not in session, an alternative option for tackling the problem of emergency
situations is normally provided. Whosoever is nominated as a temporary guardianof the
emergency powers, has to refer the whole issue to the titular holder of those powers as soon as
possible.47

46
VenelinGanev, Emergency Powers and the New East European Constitutions, 45 AM. J. COMP. L. 585, 588()1997
[hereinafter Ganev: Emergency Power
47
Ibid at 588

22
Similarly, in the case of the executive model, the decree introducing a state of emergency may be
required to be countersigned by another official within the executive and the president may also
be required to bring the matter to the attention of parliament as soon as possible. Article 93 of the
FDRE Constitution lays down the circumstances for a valid declaration of states of emergency
under the Ethiopian legal system. Sub-article 1 reads:

1. (a) The Council of Ministers of the Federal Governments shall have the power to
decree a state of emergency, should an external invasion, a breakdown of law and
order which endangers the Constitutional order and which cannot be controlled by the
regular law enforcement agencies and personnel, a natural disaster, or an epidemic
occur.
(b) State executives can decree a State-Wide state of emergency should a natural
disaster or an epidemic occur. Particulars shall be determined in State Constitutions to
be promulgated in conformity with this Constitution.

First, the situations that justify the declaration of a state of emergency are an external invasion, a
breakdown of law and order which endangers the constitutional order and which cannot be
controlled by regular law enforcement agencies and personnel, a natural disaster, or an epidemic.
In these situations, the Council of Ministers can lawfully exercise its power to declare a state of
emergency. To put it differently, a war of aggression, internal disturbance, such as rebellion and
subversive movements or natural calamities like food, wildfire and transmissible diseases are the
only grounds on which a state of emergency could be declared under the Constitution.

The Constitution requires the actual occurrence of the circumstance for a state of emergency to
be put in place. Near occurrence or quite immanency are insufficient. The requirement that the
breakdown of law and order must be such that it endangers the Constitutional order and cannot
be controlled by the regular law enforcement agencies and personnel indicates that a declaration
of emergency should be of an exceptional nature. The crisis has to be so serious that the
country’s institutional framework has broken down and violence must have become widespread,
wreaking havoc on citizens.

23
Second, the power to declare states of emergency is given to the Council of Ministers, which is
the executive organ of the country.48 During emergency, the Council is also given all the powers
to protect the country’s peace a and sovereignty as well as maintain public security, law and
order.49 Similarly, Article 93(1) (b) authorizes state executive to declare state of emergency
within their respective region when they are confronted with natural disasters or epidemic,
provided that such declaration is in conformity with the constitution of the particular state.

Where a state of emergency is declared while the HOPR is in session the declaration should be
submitted to the House within forty-eight hours for endorsement50.

If, however, the House is in recess, the declaration should be submitted within fifteen days of its
adoption by the Council of Ministers.51 If the declaration gets the assent of the HOPR, the state
of emergency will remain in effect for up to six months. Similarly, if the members of the HOPR,
by a two-thirds majority vote so decide, an emergency proclamation may be renewed for a four-
52
month period successively. third, the Council has “the power to suspend political and
democratic rights contained in this Constitution to the extent necessary to avert the conditions
that required the declaration of a state of emergency. 53 Fourth, the Constitution, under Article 25
incorporates the principle of non-discrimination and its derogation clause stipulates clearly that
the principle is not subject to any types of limitation or suspension.

3.3. Non-Derogable Rights under the FDRE Constitution

In line with the general state practice in times of emergency discussed in earlier sections, the
FDRE Constitution too allows limitations on and derogation from the fundamental rights and
freedoms listed under Chapter Three while at the same time recognizing certain absolute rights.
Article 93 (4) of the Constitution states:

48
ETH.CONST. art.77(10) cum Article 93(1) (a).
49
ETH.CONST. art. 93(4) (a)
50
ETH.CONST. art. 93(4) (a)
51
ETH. CONST. art 93(2) (a) and (b
52
ETH. CONST. art 93(3)
53
ETH. CONST. art 93(4) (b)

24
 (b) The Council of Ministers shall have the power to suspend such political and
democratic rights contained in this Constitution to the extent necessary to avert the
conditions that required the declaration of a state of emergency.
(c) In the exercise of its emergency powers the Council of Ministers can not, however,
suspend or limit the rights provided for in Articles 1, 18,25, and sub-Articles 1 and 2 of
Article 39 of this Constitution.
The Constitution thus puts certain rights and freedoms beyond the reach of the emergency
powers of the government even when there is an actual and imminent danger against the life of
the nation. The list of fundamental rights and freedoms that are non-derogable under the FDRE
Constitution include: the right to protection against cruel, inhuman and degrading treatment or
punishment [Art. 18(1)]; the right to be protected against slavery, servitude and the trafficking of
human being [Art.18(2)]; the right to equality (Art.25) and the right of Nations, Nationalities and
Peoples of Ethiopia to self-determination up to secession [Art.39(1)] and their right to speak, to
write and to develop their own language as well as to express, to develop and promote their
culture and to preserve their history [Art.39(2) and (3)]. Although it is not a right, nomenclature
of the State is also made non-derogable under the Constitution (Art. 1).54
A juxtaposed reading of Article 93(4) (c) of the Constitution and Article 4(2) of the ICCPR
clearly demonstrate that the list of non-derogable rights and freedoms in the former leaves out
some of the rights that are enumerated in the latter. The non-derogable rights listed under Article
4(2) are right to life; freedom against torture, cruel, ihuman or degrading treatment or
punishment;55 freedom against slavery, slave trade and servitude;56 freedom against
imprisonment for contractual obligation;57freedom against ex post facto criminal laws; right to
recognition everywhere as a person before a law; 58 and right to freedom of through, conscience
and religion. The Constitution fails to exempt the right to life, freedom against imprisonment for
contractual debt, right to recognition everywhere as a person before the law and the prohibition
against ex posto facto penal law as well as right to freedom of thought, conscience and religion
from suspension during emergencies.
54
ICCPR, art. 6
55
ICCPR, art. 7
56
ICCPR, art. 8 (1) and (2)
57
ICCPR, art. 11
58
ICCPR, art. 15

25
 3.4. Constitutional Safeguards against Abuse of Emergency Powers
The importance of precise and effective national legislation and effective domestic control
mechanisms to prevent breaches of human rights during situations of public emergency cannot
be overemphasized. Domestic control over emergency power takes two main forms: legislative
control and judicial review.
3.5. Legislative Control
In most cases, national constitutions provide in some detail the circumstances under which a
state of emergency may be declared, the natural of permissible derogations, the monitoring role
of the legislative and judicial organs, and the way in which the emergency regime could be
extended and ultimately come to an end.Specific controls may include: a requirement that any
resort to emergency powers must be approved, either before introduction or soon after that, by a
specified majorityof the legislators; a duty on the executive to seek periodic renewals for
emergency mandate; times limits on the overall duration of the emergency; and a right to the part
of the legislature to terminate the emergency at its discretion.
In the Ethiopian Constitution, attempt has been made to give HOPR some control over the
executive act of proclaiming or declaring an emergency.

The first limitation is that if the state of emergency is declared while the HOPR is in session, the
emergency decree should be submitted to the House within forty-eight hours of its
declaration.59If the emergency is decreed when the HOPR is in recess, then, it needs to be
submitted to the House within 15 days of its declaration. In both cases, if the decree fails to get
the approval of two-third majority vote for the members of the HOPR, it has to be repealed
forthwith.60 The second limitation relates to the scope of the emergency regulations, i.e., “the
executive can only derogate from what the Constitution designates” as “political and democratic
rights.” The third safeguardis temporal, i.e., the declaration of emergency is limited to six
months. Although the Constitution does not put an upper limit to the number of renewals, it
requires the HOPR to reconsider the emergency publicly on a bi-annual basis.
More importantly, the Constitution entrusts the duty to administer a state of emergence to the
Emergency Inquiry Board constituted by the HOPR.The Board undertakes a series of tasks
including inspection and follow up to ensure that measures taken during the state of emergency
59
ETH. CON ST. art 93(2)(a)
60
ETH. CONST. art 93(5)

26
are not inhuimance.61 When the Board finds any case of inhumane treatment, it is mandated to
suggest certain corrective actions to the Council of Ministers or to the Prime Minister and to
ensure that the perpetrators of those acts are prosecuted. It is also empowered to publicized the
names of all persons detained by reason of the declared state of emergency within one month and
to convey its views to the House of Peoples Representatives on matters of extension of the
duration of the state of emergency.62
3.6. Judicial Review
In a system in which the judiciary is empowered to review acts of parliament and the executive
action, a declaration of emergency that fails to meet legal requirements could be declared null
and void by a court of law.63 Further, national courts normally have the power to review
measures taken during the emergency situation, including the power to issue writ of habeas
corpus.64Of greater interest is the question whether the courts have power to question the wisdom
of the executive’s determination that an emergency exists. Some authors argue that “a court
[should] question the correctness of the belief that an emergency situation in fact existed or even
the bona fides of the government in making a proclamation or declaration of emergency.
Others, however, claims that “the executive and legislature, the political branches of government,
are entitled to discretion in determining the existence and gravity of a threat to the nation, i.e.,
the need for a state of emergency, and the necessity for recourse to specific measures.
The different principles adopted as guidelines for derogation as well as the human rights
instruments and the work of human rights bodies, make it clear that ordinary courts should be
empowered not only to rule on the constitutionality of the state of emergency but also the way in
which the executive exercise it emergency powers. Courts should be able to declare that
emergency measures that go beyond the demands of the situation and the powers conferred on
the executive as null and void. Constitutional and judicial guarantees, including due process of
law and habeas corpus, should be accessible to individual to challenges government acts

UNIT 4

OVERVIEW OF CURENT STATE OF EMERGENCY

61
ETH. CONST. art 93(6)
62
ETH. CONST. art 93(6)(e)
63
ICJ: States of Emergency
64
In Its General Comment 29, the Human Rights Committee notes that “a state party may not depart from the
requirement of effective judicial review of detention”

27
4. BACKGROUND
There have been almost continuous protests in parts of Ethiopia since November 2015. The
protests, which began in Oromia Region in November 2015, were initially in response to
government plans to extend the capital, Addis Ababa, into Oromia. The government announced
the cancellation of the Addis Ababa ‘Master Plan’ in January 2016, but by then the protesters’
demands had evolved to include release of prisoners of conscience, administrative autonomy of
the Region, and political and economic justice. Protests in Amhara Region began in August 2016
against arbitrary detention and demanding the self-determination of the ethnic Amhara
community in neighboring Tigray Region. Tensions in Oromia and Amhara Regions escalated
following a stampede during the Irrecha festival on 2 October 2016 that resulted in the death of
at least 55 people. The cause of the stampede and the number of casualties are contested. The
government blames ‘anti-peace’ protestors for triggering the stampede, while Oromo activists
claim that government security forces triggered it when they fired tear gas canisters and shot live
ammunition into the crowd. Subsequently, fresh protests broke out in a number of locations in
Oromia Region during the ‘week of rage’ declared by Oromo activists 65. Some protests became
violent as protesters attacked foreign and local businesses, farms and vehicles, especially those
near Addis Ababa. The Ethiopian government also alleges that the protestors attacked and killed
security forces in some districts of OromiaRegion.There were also peaceful protests in parts of
Amhara region following the Irrecha stampede. The Ethiopian government declared a state of
emergency on 9 October 2016 in response to the protests. The State of Emergency Declaration
outlines broad restrictions on a range of human rights,including non-derogable rights such as the
prohibition on the retroactive application of criminal law; and the prohibition of torture and other
ill-treatment, as well as fundamental requirements of fair Trial. Government security forces
arrested tens of thousands of people in Amhara Region, Oromia 66Region and the Southern
Nations, Nationalities and Peoples’ Region (SNNPR), including manypolitical activists, Human
Rights Council monitors, protestors and journalists. The State of Emergency Declaration
established a Command Post with the powers to determine the specific measures, restrictions and
areas for implementation of the state of emergency. The Prime Minister chairs the Command
Post and the Minister of Defense serves as its Secretary. Other members include the Federal

65
2016 Amnesty international report on Ethiopian state of emergency
66
ibid

28
Police Commissioner and Regional Special Force Police Commanders67
4.1. INTERNATIONAL LAW AND STATES OF EMERGENCY DIRECTIVE.
The ICCPR provides, in Article 4, that in time of an officially proclaimed public emergency
whichThreatens the life of the nation, states may take measures derogating from certain
obligations under the Convention. Those derogations shall be limited to the extent strictly
required by the exigencies of the situation, be consistent with their other obligations under
international law and not be discriminatory68However; Article 4 of the ICCPR also explicitly lists
certain rights which may not be derogated from at all. The UN Human Rights Committee, the
body of independent experts established under the ICCPR to monitor states’ compliance with
their obligations under that treaty, has clarified that not only the decision to derogate in itself, but
each specific measure taken under the derogation, must be demonstrably required by the
exigencies of the situation. States availing themselves of this derogation However, in practice,
thegovernment widely used the military and local militia members before and during the state of
emergency. Hence, the phrase ‘law enforcement officials’ does not capture all actors involved in
implementation of the state ofemergency. Provision must notify the UN Secretary General and
other states parties to the ICCPR of the provisions of the convention from which they have
derogated and the reasons for the same.69
4.2 Notification
During a public emergency, States Parties to the ICCPR have an obligation to notify other States
Parties of the provisions they are derogating from, through the UN Secretary General. The
notification must state the provisions of the ICCPR from which they have derogated and the
reasons for so doing. Notification is crucial not only for other states parties, but also to enable the
UN Human Rights Committee to monitor the human rights situation in the country during the
emergency period. The UN Human Rights Committee has stressed the requirement of
notification is important “…in assessing whether the measures taken by the State party were
strictly required by the exigencies of the situation”. As of 11 January 2017, the Ethiopian
government had not sent notification of the declaration of the state of emergency and the
derogations as required.

67
The Directive states ‘ህግአስከባሪዎች’, which literally means ‘law enforcement officials.
68
ICCPR article 4
69
Command Post, Directive for the Implementation of the State of Emergency, Article 28(4).
Command Post, Directive for the Implementation of the State of Emergency, Article 28(5).

29
4.3 Legality
The principle of legality requires that laws shall be available and accessible to the public. The
exact content of the State of Emergency Declaration was still not officially available to the public
by the end of 2016, in violation of this principle. The failure to make the text publicly available
also fails to meet requirements of national law specifically that all legal proclamations to be
published in Ethiopia’s Gazette .Both the State of Emergency Declaration and its implementation
directive also fail to comply with another element of the principle of legality, the requirement
that provisions with legal consequences be clear and precise. Clarity and precision is important
so that people know actions allowed or prohibited. When laws are clear and precise, people can
also foresee the consequences of breaking the law. However, the State of Emergency Declaration
and its implementation directive use imprecise terms such as ‘national security’ and ‘sovereignty’
to, for example, prohibit communications with international non-governmental organizations and
foreign government bodies. Finally, the state of emergency measures violate the principle of non-
retroactive application of criminal laws, a non-derogable right, as they authorizes the detention
of people for their involvement and role in coordinating protests against the Ethiopian
government since the end of 2015.
2.4 Non-derogable rights.
Article 4(2) of the ICCPR prohibits derogation from some provisions of the ICCPR, even during
public emergency. These are: Article 6 (right to life and freedom from arbitrary deprivation of
life); Article 7(freedom from torture and other forms of ill-treatment); Article 8(1 and 2)
(freedom from slavery and servitude); Article 11 (freedom from imprisonment due to failure to
fulfill contractual liability); Article15 (freedom from non-retroactive application of criminal
law); Article 16 (right to recognition before ICCPR, Article 4(3). UN Human Rights Committee,
General Comment Number 29, Paragraph 17.the law); and Article 18 (freedom of thought,
conscience and religion).The UN Human Rights Committee, in its General Comment Number
29, identified additional non–derogable provisions, including: Article 2(1) (non-discrimination);
Article 3 (the right to an effective remedy); Article 14 (right to fair trial); and the right to take
proceedings before a court to challenge the lawfulness of detention (Article 9(4) on habeas
corpus).Some measures provided for under the State of Emergency Declaration are in breach of
some of the ICCPR’s non-derogable rights.70

70
ICCPR article 6,8,11,15,4(3)

30
2.5 Torture and other ill-treatment
The right to freedom from torture and other ill-treatment is one of the non-derogable rights
explicitly listed in Article 4(2) of the ICCPR.The implementation directive provides powers to
the Command Post to implement ‘rehabilitation measures’ against people who participated in
violence and unrest in the past year. While the exact meaning and duration of these
‘rehabilitation measures’ is unclear, Amnesty International is concerned that they amount to
torture and other ill-treatment. Amnesty International has already documented the use of torture
and other forms of ill-treatment during mass detentions of protesters in Ethiopia, which the
Ethiopian government calls as ‘rehabilitation measures. For example, several people released
from detention under the state of emergency at Awash Arba Awash Sebat and Tolay military
training centres told Amnesty International that the police repeatedly beat them with sticks and
forced them to do strenuous physical exercises. Another person released from Tolay detention
centre for more than a month, told Amnesty International that the police beat and kicked
detainees including himself. Amnesty International has also confirmed that the police tortured
and ill-treated detainees at Awash Arba and Awash Sebat military training centres. The detainees
had no recourse in the absence of judicial oversight of conditions of detention as per the state of
emergency declaration.71
2.6 Non-retroactive application
Under the ICCPR, the right not to be subject to retroactive application of the criminal law is
among non-derogable rights. The principle of non-retroactive application implies that criminal
responsibility emanates from violation of clear and precise provisions of the law at the time of
the commission. ICCPR, Articles 4(2) and Article 7. The Convention against Torture (CAT),
Article 2(2) has also underlined the non-derogable nature of freedom from torture and other ill-
treatment: “No exceptional circumstances whatsoever, whether a state of war or a threat of war,
internal political instability or any other public emergency, may be invoked as a justification of
torture. Non retroactive application of criminal law is also a basic principle acknowledged in
most domestic systems of criminal law.
Of the crime.72 However, the implementation directive for the State of Emergency Declaration
violates the right of individuals to be free from non-retroactive application of criminal laws since
it prescribes punishment like, ‘rehabilitation’ measures for people who participated in strikes and
71
Amnesty International, Because I am Oromo: sweeping repression in the Oromia Region of Ethiopia
72
,Ibid

31
protests during the whole of the past year.
2.7. The right to fair trial
Even though the ICCPR’s Article 4(2) does not specifically mention it, the UN Human Rights
Committee has identified the non-derogable nature of the right to fair trial as follows:
The Committee is of the opinion that the principles of legality and the rule of law require that
Fundamental requirements of fair trial must be respected during a state of emergency. Only a
court of law may try and convict a person for a criminal offence. The presumption of innocence
must be respected. In order to protect non-derogable rights, the right to take proceedings before a
court to enable the court to decide without delay on the lawfulness of detention must not be
diminished by a State party’s decision to derogate from the Covenant. The State of Emergency
Declaration, however, allows the Command Post to suspend implementation of non-specified
substantive and procedural laws of the country. Accordingly, remedies for human rights
violations as provided for in substantive and procedural laws of the country may not be
applicable during the state of emergency. For instance, people in detention under the state of
emergency provisions may not be able to pursue the habeas corpus remedy as provided for in the
Ethiopian Civil Procedure Code and the judiciary may not be able to oversee the conditions of
detention to ensure the rights of those detained are respected, including their right not to be
subjected to torture and other ill-treatment73.
2.8. Necessity and Proportionality-strictly required by the exigencies of the situation
Any measure taken under a state of emergency must be strictly required by the exigencies of the
situation that gave rise to the declaration of the state of emergency. As the UN Human Rights
Committee has stated clearly in its General Comment74However they fail to capture the same
content as the Amharic versions.
A fundamental requirement for any measures derogating from the Covenant is that such
measures are limited to the extent strictly required by the exigencies of the situation. This
requirement relates to the duration, geographical coverage, and material scope of the state of

73
Directive for the Implementation of State of Emergency Declaration, Article 31(2) states that the Command Post
can enforce rehabilitation measures on “any person who have taken part in any disturbance or riot individually or
in group in the past one year
74
Restrictions and measures as per the declaration of State of Emergency disclosed, GetachewAmbaye, the Federal
Prosecutor General, http://www.fanabc.com/index.php/news/item/19326 and
http://www.ena.gov.et/index.php/politics/item/8007-2016-10-10-01-35-36 (accessed on 28 November 2016). In
Amharic, it states that “የፍሬነገርናየሥነሥርዓትህጎችሊታገዱእንደሚችሉምአክለዋል” which translates into English www. fana
bc.com

32
emergency and any measures of derogation resorted to because of the emergency. Derogation
from some Covenant obligations in emergency situations is clearly distinct from restrictions or
limitations allowed even in normal times under several provisions of the Covenant. Nevertheless,
the obligation to limit any derogation to those strictly required by the exigencies of the situation
reflects the principle of proportionality which is common to derogation and limitation powers.
The UN Human Rights Committee referred to the principles of necessity and proportionality, set
out in Article 4(1) of the ICCPR, which apply to measures derogating from or limiting certain
rights under the ICCPR. The principles of necessity and proportionality require that any
measures imposed in the context of a state of emergency which derogate from provisions of the
ICCPR must be demonstrably necessary for the achievement of their intended purpose, must be
proportionate to that purpose and must not jeopardize the rights restricted75.
2.8 Geographic extent
The Ethiopian government has repeatedly affirmed that the violence after the Irrecha stampede
Prompted the declaration of the state of emergency. The violence following the Irrecha stampede
was restricted to the Oromia and Amhara Regions, but most of the following prohibitions as per
the implementation directive for the State of Emergency Declaration apply across the country76
 Any communications that can create violence, unrest or conflict among people through
Internet, writings, television, radio, social media or any other channel;
 Communication with groups designated as terrorist groups, possession and distribution of
Publications of terrorist groups, possession of the emblems of terrorist groups or promoting
Their emblems;
 Listening/watching, providing access to, and reporting the broadcasts of ESAT, OMN and
Other media outlets of terrorist groups;
 Failure to provide public services, closure of shops, absenteeism from work without sufficient
Reason;
 Threatening and intimidating employees of government and private institutions from
Attending their work;

75
UN Human Rights Committee, General Comment Number 29, Paragraph 4
76
state of emergency directive by command post Both ESAT and OMN are satellite television stations operated
outside the country by members of the Ethiopian
Diaspora. The government alleges that both of them are mouthpieces of groups which the Ethiopian Parliament
has designated as terrorist groups as per the Anti-Terrorism Proclamation 652/2009.

33
 Inciting violence and unrest that are against sport ethics on sports grounds;
 Obstruction and of disruption of religious, cultural and public ceremonies or reciting slogans
with political content unrelated to the ceremony;
 Any communication or relation with foreign governments or foreign NGOs that can
jeopardize
the sovereignty, security and constitutional order;
 Any press statements by political parties that can endanger the sovereignty, security, and.
Constitutional order.
As the violence occurred primarily in some districts of Oromia and Amhara Regions, it is unclear
why the measures imposed under the state of emergency declaration are applicable in all parts of
the country. It is unclear how the exigencies of the situation require the imposition of such
measures across the whole country. The geographic coverage of the state of emergency is
disproportionate to the exigencies of the situation.
2.9 Material scope of derogations: restrictions on human right information-sharing and
freedom of expression
The State of Emergency Declaration provides for measures derogating from provisions of the
ICCPR, which the Ethiopian government claims to be necessary to curtail the violence that
occurred in some districts and regions of the country following the Irrecha stampede. However, it
is unclear how the restrictions on communications, including with foreign states and foreign
NGOs, contributes towards controlling that violence. During the 2016 protests, political parties
and individual activists have been key sources of information, for the media and human rights
organizations, on human rights violations committed by government security forces. People in
different parts ofOromia and Amhara Regions reported human rights violations to the media and
human rights organizations through social media and other internet-based services, in real time.
Political parties in support of the protesters also reported such human rights violations77.
Hence, the new prohibitions have inhibited access to information regarding the human rights
situation for both the Ethiopian and other publics and human rights organizations, at least in the
first three months of the state of emergency period. 783. Under the State of Emergency
77
Voice of America (VOA), Ethiopia Releases Thousands Arrested since Start of State of Emergency:
http://www.voanews.com/a/ethiopia-releases-thousands-arrested-since-start-state-emergency/3647156.html
(accessed on 10 January 2017).
78
The Human Rights Council is the oldest and the only remaining domestic human rights organisation that
survived

34
Declaration, the Command Post can impose the following measures
 Prohibit any overt or covert incitement to violence or ethnic conflict, in whatever form of
Expression;
 Stop or suspend any mass media and communications;
 Prohibit assemblies, organizations and demonstrations;
 Arrest anyone suspected of using violence in the areas the Command Post identifies. Those
Arrested will be ‘rehabilitated’ and released or, if necessary, punished as per the relevant Law;
 Search any person or place and seize items where necessary;
 Impose curfews;
 Block any road or public place or evacuate and move people from certain places;
 Evacuate people vulnerable to threats and keep them in safe places for a limited period of
time;
 Use proportionate force necessary for the implementation of the state of emergency;
 Suspend substantive and procedural laws of the country.79
Information about these provisions and other aspects of the state of emergency has been
Communicated to the public through reports in the media, including interviews in the media by
Government authorities, but the full text of the State of Emergency Declaration had not been
published by the end of 2016. Pursuant to the declaration of the state of emergency, the
Command Post issued a Directive on 15 state parties to both the ICCPR and the ACHPR needs to
ensure that any measures taken which derogate from the ICCPR nonetheless comply with its
obligations under the ACHPR. This thesis uses the framework providedby the ICCPR as further
elaborated by the UN Human Rights Committee in its General Comment Number 29.October
2016,9 which lists the actions prohibited throughout the country and in specific parts of the
country, state of emergency measures, and businesses’ obligation to keep records of home and
vehicle leases and communicate these records to the police.
The Directive also provides the security forces with powers to enforce the state of
emergency. These powers include:
the impact of the Charities and Societies Proclamation Number 621/2009.
Fana BC, The Command Post Aims to Restore Peace and Order in the Country-Ministry of Defence (translation
from Amharic news ኮማንድፖስቱየሀገሪቱንስላምእናመረጋጋትበአጭርጊዜለመመለስይሰራል - የመከላከያሚኒስትር):
http://www.fanabc.com/index.php/news/item/19388 (accessed on 28 November 2016).
This listing is based on information provided by government authorities in media interviews.

79
Article 28 State of emergency directives provisions by command posts

35
 Arrest without warrant;
 Authority to detain those arrested in locations designated by the Command Post until the end
of the state of emergency;
 Search and seizure without a warrant;
 Surveillance and control of any messages through radio, television, articles, pictures,
Photographs, theatre and movies.
This thesis analyses the measures and restrictions under the State of Emergency Declaration and
assesses the extent to which they are compatible with Ethiopia’s international and regional
human rights obligations.80
4.2.1. Pros of declaration of state of emergency
Countries may issue emergency declarations due to the urgent prevalence of manmade or natural
disasters that dangerously affect the livelihood of peoples, a condition of civil unrest or war that
jeopardizes both the normal livelihood of people and the sovereignty of the state. A number of
countries in the world and many states in the U.S are in a state of emergency in response to
different situations. Terrorism, natural disasters and public unrest are among the situations that
forced governments to declare state of emergency. A declaration of emergency could imply the
suspension of rights and freedoms guaranteed under a country's constitution during this period of
time. It alerts citizens to change their normal behavior and orders government agencies to
implement emergency plans. Under international law, rights and freedoms may be suspended
during a state of emergency. In the International Covenant for Civil and Political Rights adopted
by the UN in 1966, this has stated clearly. Article 4 of the Covenant provides: “In time of public
emergency which threatens the life of the nation and the existence of which is officially
proclaimed, the States Parties to the present Covenant may take measures derogating from their
obligations under the present covenant to the extent strictly required by the exigencies of the
situation, provided that such measures are not inconsistent with their other obligations under
international law and do not involve discrimination solely on the ground of race, color, sex,
language, religion or social origin. “Following the fall of the military regime in 1991, Ethiopia
has managed to build a stable state. Until the recent violence happened in some parts of the
country, Ethiopia has been a peaceful and stable state over the past 25 years. Recent protests and
violent activities carried out in various parts of the country threaten Ethiopia's reputation as an

80
Article 28 Provisions of State of emergency directive by command post

36
oasis of political stability whose double-digit growth has lured investors in recent years.
Following these violent acts, Ethiopia has declared a six-month nation-wide state of emergency
with the objective of maintaining peace that is of crucial importance for the nation’s struggle to
pull out from the bondage of abject poverty and safeguard the sovereignty of the nation. External
invasion, break down of law and order that endangers the constitutional order and cannot be
controlled by the regular law enforcement procedures, and prevalence of disasters or epidemic
are conditions under which a state of emergency is declared in the country. Though the Council
Ministers has the power to decree a state of emergency, its implementation and becoming a
proclamation is determined with the approval of the House of Peoples’ Representative, the
legislative body. The House may allow the state of emergency to be renewed every four months
successively. During a state of emergency, the Constitution provides the power to the
government to suspend political and democratic rights to the extent necessary to avert the
situation without derogation of human and democratic rights provided in articles 18, 25, and
article 39 sub articles 1 and 2 of the Constitution. The right to get protection from inhumane
treatment, punishment, slavery or servitude and forced labor; the right to equality; rights of
nations, nationalities and peoples to self-determination including the right to secession, the right
to use and develop their own language as well as promote their culture and preserve history,
cannot be suspended. The nomenclature of the state, the “Federal Democratic Republic of
Ethiopia” provided under article 1 of the Constitution, also cannot be suspended. The Decree,
which becomes a proclamation following the approval by the House of Peoples’ Representatives,
also provides for the establishment of a Command Post chaired by the Prime Minister to enforce
law and order. The Command Post, whose members are chosen by the Prime Minister, was given
the mandate to determine and announce which specific restrictions apply where and when.
Accordingly, the Command Post has issued the directive for the execution of the state of
emergency. Actions that provoke public strife and that may create discord and havoc among
people; organizing open and clandestine agitation; preparation and distribution of printed
materials and displaying provocative shows, use of signs to incite public unrest, communicating
with terrorist groups are among the activities prevented during the state of emergency. The
Proclamation authorizes the Command Post to clamp down on any media outlets engaged in a
hybrid of propaganda barrage against the country, ban illegal meetings and demonstrations,
detention of persons suspected of crimes by suspending their rights to Habeas Corpus,

37
confiscating properties and materials used for creating public unrest, prevention and prohibition
of use of firearms and ammunitions in designated areas, reinstating public administrative
amenities and services destroyed by unrests, ensuring that normal public services and activities
are restored. In addressing the nation on the objectives of the state of emergency we can note that
the state of emergency was declared because there has been "enormous" damage to property.
“We can put our citizens' safety first. Besides, we want to put an end to the damage that is being
carried out against infrastructure projects, education institutions, health centers, administration
and justice buildings,". To continue the recent developments in Ethiopia have put the integrity of
the nation at risk". Haile Mariam underscored that the state of emergency will not breach basic
human rights enshrined under the Ethiopian constitution and won't also affect diplomatic rights
listed under the Vienna Convention, "In the recent past and just recently, Ethiopia was not the
only country that had declared a state of emergency. One can easily recall that France declared a
state of emergency in response to terrorist attacks. A number of states in the US are in a state of
emergency because of public unrest and natural disasters. Turkey has also declared a state of
emergency that resulted from a coup attempt. Ethiopia declared a state of emergency under a
condition where among other destructive actions anti- Ethiopia forces burned down factories that
employed more than 40,000 workers that are responsible for 200,000 dependent’s, when they
destroyed a water supply systems that are put to service and when they burned down vehicles,
schools, clinics and private enterprises. Media outlets abroad are busy providing twisted and
distorted information regarding the objective reality in the country as an action against
“democratic rights” and “human rights” in their own definitions. When Ethiopia declares a state
of emergency to protect its citizens and the sovereignty of the state, it is branded as “violation of
human rights”. When the country strives to protect the gains enshrined in the constitution, it is
labeled as“unproportional measures”.81 Only a few days after the declaration of the state of
emergency that enjoyed public support, peace and normal life is being restored in areas that
suffered from unprecedented destruction. the academic calendar in the universities and other
public and private institutes of higher learning, secondary and elementary schools is going on as
planned. The Constitution of FDRE provides that the state of emergency could last up to six
months and it can end even before six months. However, the government has added additional
time for emergency to prevalence of piece and development in the country.

81
Pm haila Mariam interview with fanabc www.fbc.org/news

38
4.2.2. CONSOFDECLARATION OF STATE OF EMERGENCY
Government officials sought to justify the announced state of emergency and corresponding
directives that were issued on October 15, by contending that they were necessary in response to
the threat posed by “anti-peace groups in close collaboration with foreign elements.” Officials
said they needed to “put an end to the damage that is being carried out against infrastructure
projects, health centers, [and] administration and justice buildings.” However, damaging
property is a crime under Ethiopia’s criminal law and the authorities could prosecute such acts
without invoking a state of emergency. The state of emergency directive prescribes sweeping and
vaguely worded restrictions on abroad range of actions that undermine basic rights, including
freedom of expression, association and peaceful assembly, and go far beyond what is permissible
under international law. Human Rights Watch has documented serious rights violations and the
curtailing of freedom of assembly and expression since the protests began in November 2015. To
some extent, the sweeping provisions effectively codify measures that security forces have been
committing unlawfully in response to the protests. Under the state of emergency, the army will
be further deployed country-wide for at least six months -- this signifies a greater willingness by
the government to use the armed forces in what should be a law enforcement role. The Ethiopian
government is empowered to declare a state of emergency under the constitution, “should an
external invasion, a breakdown of law and order which endangers the Constitutional order and
which cannot be controlled by the regular law enforcement agencies and personnel, a natural
disaster, or an epidemic occur.” Under the International Covenant on Civil and Political Rights
(ICCPR),certain rights may be derogated under a state of emergency but must be tailored to the
“exigencies of the situation,” while other rights may not be derogated under any circumstances.
Under the African Charter on Human and Peoples’ Rights, no derogation of charter rights is
allowed during a time of emergency. The United Nations Human Rights Committee, the
international expert body that interprets the ICCPR, has said in its General Comment No. 29 on
states of emergency that governments need to “provide careful justification not only for their
decision to proclaim a state of emergency but also for any specific measures based on such a
proclamation.” Whether a specific measure is consistent with the “exigencies of the situation
“depends on its “duration, geographical coverage and material scope,” which must be tailored to
a particular situation. To restore a “state of normalcy where full respect for the Covenant can
again be secured must be the predominant objective. “Human Rights Watch has grave concerns
that Ethiopia’s state of emergency directive permits vague and overbroad restrictions beyond
those permitted under the ICCPR that threaten basic rights to free expression, assembly, and
association and may encourage violations of the rights to the security of the person, including
arbitrary detention and torture. For example, violence has occurred in only two of Ethiopia’s nine
regions, affecting less than half the country, yet the geographic coverage of the state of
emergency is country-wide. As to duration, the state of emergency is for six months, the
maximum permissible under the Ethiopian constitution, yet the government has not explained
why the current situation warrants the longest possible period allowed by law. Regarding
material scope, the restrictions on free expression rights, which include both content and forms
of speech and protest, go are well beyond the “exigencies of the situation” to permit the silencing

39
of peaceful expression and denial of access to information. Human Rights Watch takes the
position that for as long as the state of emergency is lawfully in place, all provisions of the
directive inconsistent with the derogation provisions of the ICCPR should promptly be repealed
or revised. Ethiopia should also recognize that it remains obligated to uphold all articles of the
African Charter, which has no derogation provisions. Individuals arbitrarily detained under the
provisions or otherwise subject to violations of their human rights should receive redress,
including prompt release and appropriate compensation.

4.2.2.1Restrictionsonfreedomofexpression

A. Access to information

The directive: restricts the writing or sharing of material on social media, radio, or internet that
“could create misunderstanding between people or unrest. “prohibits access to diaspora
television stations and other “similar linked terrorist media” [US-based Ethiopian Satellite
Television (ESAT) and Oromia Media Network (OMN) are named].enables government to
“censor and block “radio and television. Prevents political parties from speaking to local or
foreign media that has the potential to disrupt “the security, sovereignty and the constitutional
order. “The directive, by obstructing or limiting platforms for communication and banning the
expression of anything that can “create misunderstanding between people or unrest,” renders
virtually all communication as potentially criminal. The vague and overly-broad ban is
ambiguous as to which conduct could run afoul of the directive. This not only makes the
directive highly discretionary and prone to abusive and partisan implementation, but, as may
have been intended, also casts a severe chilling effect on speech, and promotes self-censorship.
These restrictions also give legal backing to practices undertaken by Ethiopian security forces to
limit access to information since the protests began in November 2015. The government has used
various means to restrict access to OMN and ESAT, including with attempts to jam those
stations, destroy satellite dishes on private homes, and arrest business owners who broadcast
these channels. OMN has reported being jammed 15 times since its March 2014 inception, and
ESAT has been intermittently jammed since 2010. International radio stations broadcasting in
one of Ethiopia’s languages including Voice of America and Deutsche Well have also reported
increased incidence of jamming of their broadcast signals in recent months. Several Ethiopian
journalists, bloggers, and fixers have been arrested since the protests began. The Ethiopian
government has long committed abuses against media professionals, including harassment and
intimidation of journalists, trumped-up prosecutions of journalists under the antiterrorism law,
and harassment of sources, printers, publishers, and others. In Africa, only Eritrea has more
journalists in detention than Ethiopia. Since the protests began, international journalists have
reported more difficulties than usual in acquiring visas, in accessing areas of protest, and some
have been detained. Social media, particularly Facebook, has played a key role in the
dissemination of information throughout the protests, particularly among young Ethiopians.

40
There have been various restrictions on social media since protests began including the complete
shutdown of the internet, and since October 5, the blocking of mobile phone internet access.82

b. Limits on communication to NGOs, foreign

Governments, and other entities the directive prohibits any communication with undefined
“terrorists and anti-peace groups” and communications to foreign governments and NGOs that
could affect “security, sovereignty and the constitutional order.” These sweeping restrictions are
both vague and overbroad and curtail free expression rights well beyond the scope of the
situation. “Terrorist and anti-peace groups” are not defined in the directive. The government has
commonly used these terms to include the activities of peaceful protesters, civil society and
political activists, including those in the diaspora, and media stations, including OMN and
ESAT.Terrorism is loosely defined in the problematic antiterrorism law, and has been broadly
applied in criminal cases to anyone who expresses dissent with government policies, including
journalists, opposition politicians, and activists. There is little independence of the judiciary in
terrorism cases under Ethiopia’s antiterrorism law, rarely acquittals, and numerous due process
concerns. Historically, many of those that express contrary views to government policies are
arrested and accused of providing support or taking direction from one of the five designated
terrorist organizations, which includes the Oromo Liberation Front (OLF) and Ginbot 7. Many
are released without charge following detention, which often includes ill-treatment and torture
during interrogations. The government has gone to great lengths to restrict the flow of
information on human rights abuses to foreign governments and to domestic and international
NGOs. Directive provisions restricting communication with NGOs further erodes the role of
civil society groups that has already been severely curtailed since the 2009 Charities and
Societies Proclamation was passed. This law limits foreign funding of domestic NGOs working
in good governance and human rights to 10 percent of its budget, effectively closing or
restricting the activities of all NGOs working in those areas. International human rights NGOs
already face significant restrictions, are denied access to Ethiopia for research, and there are
regular arrests of those suspected of sharing information with those NGOs. Recently, some
government officials have sought to blame unrest on human rights groups documenting security
force abuses and calling for credible investigations. Limitations on communications with foreign
governments, combined with restrictions on diplomats traveling more than 40 kilometers outside
of Addis Ababa, will severely curtail the ability of foreign governments to access independent
information that is needed to formulate coherent and timely responses to events as they unfold. It
is not clear what impact this measure could have on the provision of much needed humanitarian
assistance and development projects that are funded and in some cases implemented by foreign
governments.

2. Restrictions on freedom of assembly and protest

A. Country-wide protest ban

82
Article 1 and article 2 of command post provision

41
According to the art 3 directive “any assembly or protest without authorization from command
post is prohibited.” There are also further measures prohibiting protests or activities that could
“prevent education institutions from carrying out their mandate, closing their institutions, or
causing any damage to their infrastructure.” There are also prohibitions on protests at sporting
events and on public holidays it is prohibited to “show any slogan or agenda unrelated” to that
holiday. While some restrictions on assembly may be justified under a state of emergency, a
blanket ban on protests country-wide is overly broad. Any criminal acts committed during a
protest should be prosecuted under Ethiopian law. The vast majority of the hundreds of protests
since November 2015 have been peaceful, and most of the violence that occurred after Irreecha
was not done as part of a protest. A blanket ban on protests further reduces outlets for the
peaceful expression of grievances. Protests have not been expressly outlawed since November
2015, but the government has taken various steps to restrict protests. The government has
repeatedly stated that protests were “illegal” because permission had not been sought from
authorities. Domestic law requires authorities to be “notified” of protests. Some protesters told
Human Rights Watch they were arrested when they sought permission from local authorities or
were denied permission for no particular reason. In some locations in Oromia, protests were
allowed to proceed but were quickly broken up by security forces using teargas, live
ammunition, beatings, and arrests. In Amhara region in August, security forces used live
ammunition to break up protests..83

b. Criminalization of forms of protest

The directive prohibits: “Closing any licensed businesses or shops or government bodies that
give service to the public [or] disappearing from business premises for no particular reason.”
“Closing or blocking of any roads, [or] disrupting transport services. Over the last year, some
protesters have engaged in forms of non-violent protest that protesters feel make them less prone
to security force abuses including blocking of roads, general strikes, and closing of businesses.
Prohibiting the closure of businesses is not related to stemming violence and the property
destruction that has occurred since Irreecha. Business owners should be able to open and close
their business as they see fit. These measures are a further attempt to close off other avenues for
peaceful protest, particularly those that may have actual or perceived negative impact on
Ethiopia’s economy.84

C. Arbitrary detention and lack of due process

Under the directive, those who do not comply with its measures can be arrested without a “court
order” and detained “in a place assigned by the command post until the end of the state of
emergency.” Government can “decide whether to teach the necessary rehabilitation and release

83
2016 Human right watch report on ethipian protest
84
Article 5 of command post provision

42
or present them before court when necessary.” While some measure of detention is permitted
during a state of emergency, the widespread detention that is enabled under the directive and has
occurred since November 2015 is not permitted under international law. Prohibitions on torture
and arbitrary detention are not derogable under any condition. According to General Comment
29, the prohibitions against taking of hostages, abductions or unacknowledged detention are not
subject to derogation [emphasis added]. Fundamental requirements of fair trial must be respected
during a state of emergency. These measures effectively codify unlawful government actions that
have largely been used since November 2015, particularly in Oromia.There have been tens of
thousands of individuals detained since the protests began. Some are charged, some are held in
detention indefinitely, and others undergo a short “rehabilitation” and then are released. Many of
those detained over the last year were held in military camps and family members were often not
aware of their whereabouts until they were released. Many of those released report torture in
detention, including in military camps but very few are ever charged. The “rehabilitation”
program referred to in article 28 of the directive has been in place in Ethiopia for some years and
is a strategy used by security forces during crackdowns. They typically involve large scale
arrests, detention for several days or weeks, ill-treatment and sometimes torture, and release on
conditions of future compliant behavior. Conditions of release vary, including the requirement to
regularly report to police stations to limit movement, suspension from school, or prohibition on
attending protests. There is no due process or formal record of these detentions. The goal is to
punish and “rehabilitate” offenders in a short period of time. Rehabilitation has occurred
regularly since November 2015, particularly in Oromia. Torture continues to be a serious
problem in Ethiopia, particularly in military camps. Human Rights Watch has documented
torture in detention throughout the protests and more broadly. Many individuals detained during
the protests never appeared in court, but those that have and have reported torture or
mistreatment have not had their complaints adequately addressed by the judiciary.

D. Right to education

The directive bans protests at schools, permits security officials access to schools to maintain
“peace and security” and enables institutions “to take administrative measures on students and
staffs protesting and instigating violence in education institutions.” Instigating violence isa
criminal act and can be prosecuted under Ethiopian law, but peaceful protesting is not a criminal
act and students should not face sanction for doing so.These measures effectively codify and
increase restrictions on access to education that have been in place in Oromia since November
2015.85.

E. Freedom of movement of refugees

The directive prohibits individuals “leaving a refugee camp without the necessary authorization.
“Under international law, Ethiopia must formally justify any prohibition on free movement as the
least restrictive measure necessary to protect national security, public order, or public health,
85
Article 5 of command post directive

43
which it has not done. The directive, and Ethiopia’s National Refugee Proclamation unlawfully
limit refugees’ movement and without basis distinguishes between Ethiopian citizens and foreign
nationals. Ethiopia host over 650,000 refugees, the largest in Africa. Most of these refugees are
from Somalia, South Sudan, and Eritrea; however there are no refugee camps under the authority
of the UN High Commissioner for Refugees in Oromia and Amhara, where recent unrest has
occurred. The country-wide ban on the freedom of movement of refugees is both overly broad
and discriminatory.86

CHAPTER 5

5. CONCLUSSION AND RECOMMENDATIONS

5.1 .Conclusion

Halfway into the six-month state of emergency the Ethiopian government declared on 9 October
2016, this is a conclusion on the State of Emergency Declaration and the Directive for the
Implementation of the Declaration. The conclusion analyses the State of Emergency Declaration

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Amnesty international report on 2016 protest in ethiopia .

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against established human rights norms provided for in the International Covenant for Civil and
Political Rights and the African Charter on Human and Peoples’ Rights. These norms include:
notification to the United Nations Secretary General; legality; non-derogable rights; necessity;
and proportionality. The commentary finds that some of the measures and restrictions in the
State of Emergency Declaration and its implementation directive fail to comply with
international and regional human rights norms. Specifically, the Ethiopian government failed to
notify the UN Secretary General of the fact that Ethiopia has declared a state of emergency, the
exigencies that required the state of emergency and the measures and restrictions imposed under
the state of emergency declaration. The State of Emergency Declaration also violated all
elements of the principle of legality since the Ethiopian government failed to avail the official
text of the State of Emergency Declaration in an accessible form, the measures and restrictions it
imposes lack clarity and precision and its punishment measures are applicable retroactively. In
addition, the measures and restrictions in the State of Emergency Declaration violate, directly or
indirectly, non-derogable rights such as freedom from torture and other ill-treatment and freedom
from non-retroactive application of criminal laws. The geographic expanse of the state of
emergency, covering as it does the whole country, violates the requirement that restrictions under
a state of emergency shall be necessary and proportionate to the exigencies that required the state
of emergency. Finally, the thesis proposes actionable home work for the Government of Ethiopia
to address the inconsistencies of the State of Emergency Declaration with international and
regional human rights treaties. These include: revision of the state of emergency to comply with
Ethiopia’s international and regional human rights obligations regarding notification, legality,
necessity and proportionality. The thesis additionally calls for the establishment of an
independent and impartial body to oversee, monitor and publicly report on implementation of the
State of Emergency
5.2. RECOMMENDATIONS
The review of measures allowed under the State of Emergency Declaration illustrates that many
of these measures fail to meet the requirements of legality, notification, necessity and
proportionality set out in the ICCPR. Moreover, they fail to meet the requirements of precision
and clarity. Therefore, I urge the Ethiopian government to ensure the State of Emergency
Declaration is fully compliant with Ethiopia’s international obligations. Specifically I have
opinion upon the Ethiopian government to:

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  Ethiopian government shoud have to Notify the UN Secretary General and state parties to
the ICCPR about the state of emergency whenever he declare state of emergency
 Limit Measures that derogate provisions of the ICCPR and the FDRE conistutution;
 Revise the State of Emergency Declaration to ensure all its measures comply with the
Requirements of notification, legality, necessity and proportionality;
 Ensure the State of Emergency Declaration does not violate non-derogable rights, such
as
 Non-retroactive application of criminal law,
 freedom from torture and other ill treatment and
 The right to fair trial,
 judicial review of detention
 Establish an independent and impartial organ to oversee and monitor implementation of
the State of emergency measures and publicly publish its findings periodically

BIBLOGRAPHY
BOOKS
1,yehenewtsegaye, state of emmergency and human right under 1995 FDRE conistitution .
2,getachewassefa ,Ethiopian conistututional laws with comparative notes and materials
3,ethipian human right hand book on limitation and derogation
LAWS
Ethiopian Federel democratic republic conistutution 1995
1,ICCPR PROTOCO
2,UDHR PROTOC

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3,AHCPR
4,UDHR
5,state of emergency directive
5,WEBSITES
1.www.emmergency .com
2.www.ena.gov.et
3.qerro.org/2017
4.www.tigraionline.com
5.www.hrw.org/news 2016
6.min bane words press.com 2017
7.allafrica .com/ stories/2016
8.capitalethiopia .com 2016
9.Http;//www.fanabc.com englsh/index.php/news/item
10.www.hwr.org/report
11.www.yahoo.com/news on Ethiopian state of emmergency
12.www.washingtonpost.com/opinions on state of emmergency
13.Ethiopian declares stste of emergency after months of protest
14.Human right watch
15.www.cpj.org/report
16www.ethipian .embassy.
17-conor gaffey;Ethiopian journalist covering oromo protest newsweeak march 7,2016
18-http//www.ibtimes.com /Ethiopia declare state of emergency after month protest
19-ethipia emergency directive art2(2),16
20-dispatesethipoan nine bloggers aquited
21-The Human Rights Council is the oldest and the only remaining domestic human rights
organisation22.that survived
23.the impact of the Charites and Societies Proclamation Number 621/2009.
24-Fana BC, The Command Post Aims to Restore Peace and Order in the Country-Ministry of Defence
(translation
25.from Amharic news ኮማንድፖስቱየሀገሪቱንስላምእናመረጋጋትበአጭርጊዜለመመለስይሰራል - የመከላከያሚኒስትር):
25-http://www.fanabc.com/index.php/news/item/19388 (accessed on 28 November 2016).
26.This listing is based on information provided by government authorities in media interview of the
Paris --Minimum Standards of Human Rights Norms in a State of Emergency. The full text of the
Standard appears in Richard B. Lillich, The Paris Minimum Standards of Human rights
States of Exception in Turkey: 1960-1980 in ICJ: States of Emergency, supra note 3, at, 312.

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