Chapter Three

The FDRE Constitution: Overview and Principles

Introduction

The Preamble of FDRE constitution commences with the expression ‘[w]e the nations, nationalities and
peoples of Ethiopia’ (NNP)—essentially, ethnic groups. The Preamble also outlines its major aim of the
constitution, which is ‘building a political community’. The aim of federalism under FDRE constitution is
building political union in FDRE. In other words the aim of the federalism under the constitution is not building
one linguistic, cultural, or religious community in Ethiopia. FDRE constitution, like federal constitution, is
grounded on political policy support both the promotion of building one political community (union) among
people as well as the promotion of people’s self-rule (autonomy). Similarly, Article 88 of the constitution require
underline the pillar aim of the Ethiopian federalism by providing political objective to be followed iuhbby
Government, which at the same time promote and support the People’s self-rule and strengthen ties of equality, unity
and fraternity among them.

The Constitution conditions the success of this sacred goal on the full respect of the fundamental rights and freedoms
of individuals and the people, to living together on the basis of equality and without any sexual, religious, and cultural
discrimination, and on rectifying historically unjust relationships and promoting shared interests. The Ethiopian
Constitution charts several fundamental principles to implement its objectives (Chapter Two). The Constitution
(Chapter Ten) also incorporates several national policy principles and objectives designed to direct social, political,
economic, and every other aspect of life and governance. These principles guide the i.mplementation of the Constitution
and other laws and policies organs of the federal and state governments. This material covers three issues. First, this
material is dedicated to elucidate the fundamental principles one by one. Second, an attempt will be made to see some
other principles/ objectives provided under the constitution. Finally, the status in the Ethiopian Constitution of
international instruments in general, and human rights instruments will be discussed.
3. 1Fundamental Principles of the FDRE Constitution
1 Popular Sovereignty
The Preamble of FDRE constitution commences with the expression ‘[w]e the nations, nationalities and peoples of
Ethiopia’(NNP)—essentially, ethnic groups. The Constitution is not a social contract between the individuals of
Ethiopia but it is contract among the NNP. The preamble of the constitution has underlined the NNP to be author of the
constitution and the building bricks of the federation and the source of political power. The constitution takes an
assumption that the foundation of the Ethiopian state as well as its continuance requires the consent of each NNP of
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Ethiopia. Article 8 of the Constitution has also strengthened such assumption by describing the concept of popular
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sovereignty with NNP.

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The constitution has not described the concept of popular sovereignty in reference to the ‘People of Ethiopia, as
Ethiopian citizens in gross. The constitution has made the sovereign power-holders, to the group of people who can be
defined as NNP. The constitution under Art 39 (5) has provided one definition for the term NNP that has relevance
throughout the constitution. To be NNP and thereby the holder of sovereign power and exercise the rights provided to
them under the constitution the group of people are expected to satisfy the following elements of Art 39 (5).
Accordingly, NNP is group of people who have or share large measure of a common culture or similar customs, mutual
intelligibility of language, belief in a common or related identities, a common psychological make-up, and who
inhabit an identifiable, predominantly contiguous territory. The three terms (Nation, Nationality or People) does not
have independent definition under the constitution. The Constitution defined three terms together, so that there is no
distinction in terms of the scope of the right among the group of people. The groups have the same right as far as they satisfy
the definitional element of39 (5).

Art 8(2) and (3) of the constitution stated that the NNP s

sovereignty will be practicable via threefold mechanisms such as the constitution itself, through direct
participation, as well as through their elected representatives. These general mechanisms provided under the article
further also defined under different provisions of the constitution. First and for most, the constitution has signified the
sovereignty of NNP under the umbrella NNP rights to self-determination. This collective right of NNP encompasses
four elements. These include cultural self-determination, Art 39 (2); the right to representation (in both federal and
regional state organs, Art 39 (3); internal self-determination, Art 47 (2); and external self-determination, article 39 (4).
Art 93 (4) (c) of the constitution also made part of NNP right to self-determination cannot be derogated in state of
emergency.

Second, the constitution amplifies the sovereignty of NNP in relation to land resource, which has invaluable economic
and political value for Ethiopians. Accordingly, Article 40 of made every NNP the ultimate and continued beneficiaries
of land resource. And, neither the state nor the people or jointly the state and the people of Ethiopia could transfer
ownership of land to any entity. Article 43 of the constitution require government to pass and implement policies which
improve living standards of people and enforce sustainable developmentrightof people.

Third, the constitution not consider NNP as passive receptors of oppression and exploitation; instead NNP are the actual
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sources of every political power. To this end the constitution has framework enabling proportional representation of
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NNP in government institutions like the executive, the National Defense, and the House of Federation. The constitution
also recognized NNP right to participate indirectly in government decision making process. This is based on their
electoral right to select representative in legislative organs like the HPR, and Regional Council.

Finally, the constitution allows the direct participation of NNP in the form of referendum, in some cases for example in
case of border disagreement (art 48) and for the exercise of internal self-determination (art 47). Article 89 (6) and Art
43(2) of the constitution oblige government to participate and consult NNP while formulating policies affecting their
community.This provision has limited government to formulate land law (policy) which has the potential to affect the
NNP with meaningful participation society.

2 The Principle of Supremacy of the Constitution

Article 9 of the FDRE Constitution provides supremacy clause.The first sentence of sub article one of Article 9
provided that the Constitution is the supreme law of the land which only has declaratory purpose and no more. In
other words, except putting the principle, it does not give any clue as to the meaning of the constitutional supremacy.
The second sentence of sub-article one of article 9 goes further in explaining what supremacy is all about in
Ethiopian context. It is a principle that makes any law, customary practice, decisions of state organ or public official
devoid of any effect if done in contravention with the terms of the constitution. By law we mean the laws of the
country’s legislative organs both at the federal and regional levels in the present context. The reference to custom is
relevant especially due to the existence of rich and well-functioning customary rules and practices in Ethiopia. The main
bit of this article is the one that clams that any of these norms will have no effect so long as they contravene the
constitution. And the House of the Federation is empowered to declare this ineffectiveness in chapter four of the
Constitution.

Art 9 (2)imposes a duty on all-rounded subjects, citizens, state organs and their officials, political organizations and
their officials, as well as other associations such as civil societies of both governmental and non-governmental in nature
and their officials to ensure the respect of the constitution and themselves to obey same.

The Third Sub-Article of Article 9 is indicative of the constitutional democracy that the country has opted to follow.
It reaffirms that any successive power transfers must be made through the platform indicated in the constitution
itself. If government power is to be transferred, as the constitution aspires, then it will also have the effect of
ensuring constitutional stability. It would be worth inquiring about the proximate linkages between the principle of
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constitutional supremacy and the constitutional assuming government power in no other manner but only through the
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constitution.

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The Final Sub-Article is about international treaties which are ratified by Ethiopia thereby excepting those which are
not ratified but adopted by the country. The ones that shall come as part of the law of the land are those ratified by the
appropriate organ as provided in the Constitution Article 55(12). The wording of this sub-article needs unpacking. What
does ‘an integral part of the law of the land’ mean? The law of the land includes this constitution itself,
proclamations by the House of Peoples’ Representatives and regional councils, the regulations of the Council of
Ministers and the directives to be issued by implementing agencies, commissions and bureaus. How are we going to
integrate such international treaties within these ranges of the laws of our land? And what is a bit ambiguous when it
comes to the FDRE constitution is the status of international treaties that have been ratified by Ethiopia. This
issue will be addressed in next final section of this chapter.

3Sanctity of Human and Democratic Rights

Article 10 of the FDRE Constitution enunciates the principle of sanctity of human rights in unequivocal terms. A
closer examination of the words of the article suggests that: a) human rights are inherent in the nature of human kind b)
they are universal (i.e. applicable to every human); c) they cannot be subject to any legitimate violation; and d) they are
indivisible. One can thus note that the principle at once spells a host of significant prescriptions about human rights.
Thus one notes that they are, in essence, at once inherent,universal, indivisible, and even absolute. This gives the moral
force that shapes and influences laws, decisions, practices, and actions taken in the public life of a society. The second
sub-article of article 10 seems to reinforce the inviolability principle when it said that they “shall be respected”.

In sum, according to the above provision human rights emanate from humanity and do not owe allegiance to any
other source. The Constitution reaffirms that it is merely reproducing, and not creating, the rights it guarantees.
As clearly indicated in the Preamble, full respect of individual and people’s fundamental freedoms and rights is an
essential precondition for the achievement of the goals set out in the Constitution. Hence, human rights and freedoms are
inviolable and inalienable guarantees. The human and democratic rights of citizens and peoples must be respected.

4 Principle of Secularism

The separation of state and religion is a principle that government must maintain an attitude of neutrality toward
religion. And it is also a political doctrine which states that the institutions of the state or government should bekept
separate from those religious institutions. A secular government does not cite a specific religious institution for
the justification of its authority. This is a principle of the modern secular constitutions. Prior to 1974, during the time
of the Emperors, religion (more specifically, the Ethiopian Orthodox Church) played a significant role in social and
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political governance and other affairs of the state. Support from the church was in fact a precondition for power. During

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the Dergue regime, however, the socialist tendencies of the regime meant that religion was discouraged and undermined.
The current Constitution takes a middle approach, in that it claims to have completely separated state and religion.
FDRE constitution has made it clear, that state and religion are separate under Art 11 and Art27.From cumulative
reading of Art 27 and Art 11 it is not so difficult to judge which position that the FDRE constitution has opted for
Secularism coupled with freedom of religion seems the position.

The first and the second sub-articles of Article 11 tell us in clear terms that the state is non-theocratic or secular by
declaring first the separation of the two and then by reaffirming the absence of any patronage to any one religion.
These two statements support each other and strengthening what is said by the other, both are meant to deliver the
same message. A kind of mutual obligation has been imposed by sub-article 3 of the same article as it signals a duty to
ward-off from each other’s business. It is meant a duty for the religions which are allowed to be freely exercisable
within the country as well as to the state. In fact the exercise of the right has its own scope and up on the weight to be
given under the circumstances between this freedom of religion and that of public interest that might have been put at
risk, then there is always a preferred position to be taken in favor of the latter. This will be a discussion when we deal
with fundamental rights and freedoms under the last chapter of this course.

Therefore, our constitution has this secularity principle coupled with neutrality, and non-interference into the free
exercise of the religious rights both negatively as well as positively. In fact the positive way of intervention into
religious affairs, for instance to promote good morale among the youth, is somehow questionable, not on the basis of
separation of state and religion, rather on the basis of the prohibition on neutrality/impartiality, which is reflected under
article 11 sub-article 2. Thus the state may not interfere in religious matters, and vice versa. Logically, the Constitution
overrules any possibility of adopting a state religion. The Constitution, however, allows the establishment of institutions
for religious education and administration, and also the setting up of religious courts, which may adjudicate on family
and personal matters based on the consent of all parties. (Read the provision)

5 Principle of Rule of Law

The preamble of our constitution provides for declaration that is building one political economy which is basically
founded on rule of law. The constitution does not provide a provision that clearly define the concept of rule of
law.That seems intentional. Because, theoretically rule of law is not something to be legislated about; rather it is
something to be practiced. Article 12 (1) is lay down the platform for accountability and the rule of law. Unless there
is transparent way of doing things which are meant in the public interest it is hardly possible to monitor the respect
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for the rule of law. This starts from the point of making the laws public on the basis of which the citizens may be
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judged for their actions or inactions. Once the rules are known everyone will have the chance to question the
measures of the official in light of the rules.

If the official fails in his/her duties, for instance by conducting him/herself against the rule, sub-article two states that
she /he shall be answerable. The responsibility may range, depending on the circumstances, from legal up to political
responsibilities. As far as the legal responsibility is concerned-which may be civil and/or criminal-it is to be treated via
the civil and criminal codes and administration system. However, sub-article 3, mentions the political responsibility
which is loss of vote of confidence as a sanction for being against the tenets of rule of law.And we have article 37
which is constitutional way out to make public officials accountable via legal sanctions. Therefore, it is very important
to bear in mind that Article 12 is a constitutional framework on the prevalence of rule of law in Ethiopia.

3.2. Other Principles and Objectives (Article 85)

The Constitution also incorporates several national policy principles and objectives designed to direct social, political,
economic, and every other aspect of life and governance. These principles guide the implementation of the
Constitution and other laws and policies of organs of government in Ethiopia. Article 85 (1)states that any organ of
Government shall, in the implementation of the Constitution, other laws and public policies, be guided by the principles and
objectives specified under this Chapter. Article 85 (2) provides that the term "Government" in this Chapter shall mean a
Federal or State government as the case may be. Thus, depending up on t he relevant provisions of constitution on division
of power (article 51 and 52) ; the following principles are relevant to guide the activities of one of the government or both.
These principles include the following.

1. Principles of external relations (Article 86)

The sovereignty of the nation and the national interest must guide the state in promoting foreign relations. As a
consequence, international agreements should be observed only to the extent that they ensure respect for
Ethiopia’s sovereignty and are not contrary to the interest of its peoples. The state must also promote mutual
respect for and the sovereign equality of other states and non-interference in the internal affairs of other states .
The Constitution also requires the state to seek and support peaceful solutions to international disputes. Forging
and promoting ‘ever growing economic union and fraternal relations’ with Ethiopia’s neighbors and other African
countries is also an essential policy guideline.

2. Principles of national defense (Article 87)

The Constitution provides that the armed forces of Ethiopia should be composed in such a way to reflect the equitable
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representation of Ethiopia’s ethnic groups. The army should, in particular, respect and obey the Constitution.

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The Minister of Defense should be a civilian. Mostimportantly, the armed forces are required to be free of any
partisanship to political parties or organizations. The armed forces are primarily responsible for protecting the
sovereignty of the state and any other duty as may be assigned to them under a state of emergency declared in
accordance with the Constitution.

3. Political objectives (Article 88)

The central objective of the Constitution and the state it establishes is to ensure the self-determination of the diverse
ethnic groups of Ethiopia. The promotion and support of this self-rule based on democratic principles is therefore
the guiding political objective. The identity of ethnic groups must be respected by the government, which must
also strengthen ties of equality, unity, and fraternity amongst the ethnic groups. To be precise, unity in diversity is the
underlying political objective of the Ethiopian Constitution.

4. Economic objectives (Article 89)

The Constitution obliges any government to formulate policies to exploit resources in a way that benefits all
Ethiopians. The creation of equal opportunities to improve economic conditions, as well as the equitable
(re)distribution of wealth to all Ethiopians, is an essential policy goal. A precondition for this is the participation of
the people in the formulation of national development policies and programs, as well as support for the
development initiatives of the people. For these purposes, land and natural resources, the basics of development,
should be held and deployed by the state on behalf of the people for common benefit and development. As such, land is
state-owned and may not be sold privately.

The economic policy principles also recognize the special needs of some economically and socially disadvantaged
groups—primarily women—and least advantaged nations, nationalities, and peoples (ethnic groups) for special
assistance. Women are also guaranteed equal participation in economic and social development efforts. The
protection and promotion of the welfare, health, and living standards ofworkers forms another basic economic
guide. The government should, moreover, take precautionary measures to avert man-made as well as natural
disasters, and provide support to victims if and when a disaster occurs.

5. Social objectives (Article 90)

The social objectives set out in the Constitution require government policies to aim to provide all Ethiopians with
access to public health, education, clean water, housing, food, and social security, to the extent that resources
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permit. Education should also be free from any form of religious, political, or cultural prejudice and influence.
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Similar to the provision in Chapter Three on fundamental rights, which requires the state to allocate ever increasing
resources to achieve these goals (Article 41). Therefore the social objectives are rights as well.

6. Cultural objectives (Article 91)

To the extent compatible with fundamental rights, human dignity, democratic norms and ideals, and the provisions of
the Constitution, the government should support the growth and enrichment of Ethiopia’s diverse indigenous
cultures and traditions on the basis of equality. All Ethiopians and the government are further required to protect the
country’s natural endowment and historical sites and objects. Supporting the development of arts, science, and
technology to the extent that resourcespermit is also another essential government duty.

7. Environmental objectives (Article 92)

A clean and healthy environment is an essential prerequisite to life. Therefore, the government is constitutionally
required to work towards ensuring that all Ethiopians live in a clean and healthy environment . It is thus
incumbent on the government, as well as on all Ethiopians, to protect the environment. It is set out in the
Constitution that development programs and projects should not damage or destroy the environment. Full
consultation and expression of views in the planning and implementation of environmental policies and projects is
constitutionally recognized as a right of the people who are directly affected.

3.3. Status and Hierarchy of International Human Rights Instruments

The status in the Ethiopian Constitution of international instruments in general, and human rights instruments in
particular, is not definite and is subject to substantial scholarly debate. Article 9(1) declares the supremacy of the
Constitution. Hence, a literal reading of this provision clearly indicates that international instruments, which are made
part and parcel of the laws of the land upon ratification under Article 9(4), are subordinate to the Constitution. Since
human rights treaties are also part of a special kind of international agreement, they should also be understood to be
subordinate to the Constitution. However, under Article 13(2) of the Constitution, the fundamental rights and freedoms
guaranteed in Chapter Three (the human rights chapter) must be interpreted in a manner conforming to the principles of
the UDHR, international covenants on human rights, and international instruments adopted by Ethiopia. This has led
some scholars to conclude that international human rights instruments that have been adopted (and not just ratified)
have a status higher than, or at least equal to, the Constitution itself.

As far as this issue is concerned, there are various arguments that are being forwarded. The first line of argument states
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treaties is normally ratified by the House of Peoples’ Representatives which is the highest government organ in the
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country and as its tool it has the power to issue proclamations. Thus, those treaties that it enacts must be given at least a
status not lower than a proclamation. As far as hierarchical relation that should exist between the constitution and such
international treaties is concerned, it has to be governed by the supremacy clause of Article 9(1) and thus the
constitution must remain supreme in case there exists inconsistency between the two.

The second line of argument is the one forwarded on the basis of Article 13(2). And some people tend to argue that
even if the constitution is supreme, however when it comes to the fundamental rights and freedoms enshrined in chapter
3 the constitution has already made an exception and accordingly, if the international agreement relates with such
theme it shall be above the constitution. Therefore, the supremacy of the constitution in the eyes of international treaties
relating to human rights may not be invoked.

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