Chapter Two

Ethiopian Constitutional Development

I. Introduction
Why do we need to look back into history?
We study the past in order to gain a better understanding of the present. Usually, the past system of
ideas and old habits affect the present in so many ways. In order to understand Ethiopian
Constitutional Development, one needs to critically explore the sources of legitimacy and power base
of the past Ethiopian rulers’ authority which has its own direct and indirect influence on the present
constitutional problems of Ethiopia. The origin of the present Ethiopian constitutional challenges
may possibly be traced back to the way Ethiopia was constituted.

II. Ethiopia as Multi-Ethnic Empire

The modern Ethiopian polity was created in the second half of the 19th century as an amalgam of poly
ethnic entities and has since then been maintained by use of force (Merera, 2006). The rulers of
Ethiopia have always relied entirely on their military force to subject the people of the Empire to
their autocratic rule. Because of the harsh and repressive rule of Ethiopian rulers, quite a big number
of scholars agree that rule of law was alien to Ethiopia (Bairu, 1994). The system had always been
hostile to the rule of law thus engendering continual ethnic conflicts (Merera, 2003). For this reason, the
entire history of the state has generally been characterized as a history of conflicts (Markakis, 2003,
Merera, 2000).

Politically, Ethiopia had traditional ruling ethnic groups who had the monopoly of power and resources
of the country. As a consequence, the conflicts in Ethiopia were by and large attributable to absolute
monopoly of power and resources by one or the other ethnic group to the exclusion of all others (Ali,

2003, Lewis, 1983, Sarah Vaughan and KjetilTronvoll, 2003).

As a multi-ethnic empire-state, the modern Ethiopia was created by wars of conquest. The way the State
was forged has created many constitutional problems which remained unaddressed by the successive
generations. The scars from the wars of conquest have had significant effects on the past, the
present and the future.

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In Ethiopia, numerous nations and nationalities have been subjugated by one or the other which
conquered the former from without and retained their conquest and domination by force. So the
Ethiopian Empire as such was forged by the force of arms where the hegemonic rule of one or two
ethnic groups has been established and maintained. Hence, the Empire State of Ethiopia had at
birth and carried with it potential seeds of conflict (Merera, 2003).

III.HAILE SELLASSIE’S MONARCHICAL CONSTITUTIONS

The 1931 Haile Sellassie I Constitution
The major factors which influenced the nature of the 1931 Constitution were:

 Legend of Solomonic Dynasty-descent from Christ- Elect of God. የሰለሞናዊ ስርወ መንግስት
ለማስቀጠል
 Strong relation between Orthodox Church and State-(Emperor needed blessing from Church
anointment). የ ኦርቶዶክስ ቤተ ክርስቲን ግንኙነት
 Strong rivalry between the nobilities. በመንንቱ መካከል የነበረው ግት

Hence, the 1931 Constitution was the product of this environment. The main objectives of the
Constitution were:

 To reduce the political power of the nobility and to legally bind the feudal nobility
 To consolidate the power of the monarchy and central government
 To appear modern in the eyes of foreigners and the educated
With that objective Haile Sellassie brought the nobility into the process of making the 1931 constitution,
in order to legally bring them under his control and to give further weight to the document (Paul
&Clapham, 1972). In short, the 1931 Constitution has:
 Helped in consolidating Haile Sellassie’s power
 Served as an instrument of centralization reflecting the traditional principle of
absolute imperial power without any practical limitations.
 Introduced a parliament as an institution which had only the right of discussion
(see arts. 30-47 of the Constitution).
Under Arts 6-17 of the constitution, the powers and prerogatives of the Emperor were provided.
Accordingly,
 Supreme power rested into the hands of the Emperor (Art 6).

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  The Emperor had the right to institute Chambers (Art 7).
 The Emperor had the right to convene and dissolve the Chamber of Deputies
(Art 8).
 The Emperor had the power to promulgate Decrees taking the place of laws
(Art 9).
With regard to citizens’ rights, Article 18-29 provides the rights and duties of subjects of the Empire.
Article 28 states that Ethiopian subjects had the right to present petitions to the government in legal
form. But no independent judiciary was created to guarantee these rights.
Overall, the 1931 constitution explicitly made the Emperor supreme and above the law (arts 5 & 6). As
sovereignty was made to be vested on the Emperor, it is difficult to imagine how this same sovereign
could impose on itself the law it could not infringe. In so doing, the traditional principle which attributed
super-human virtue to the Emperor prevailed.
In general, the 1931 Constitution, rather than limiting and distributing power it consolidated and
centralized it (arts 1-5). Like the traditional Abyssinia kings, the Emperor remained above laws and
supreme in all cases ecclesiastical and civil (Bruce). According to a certain writer, “When Haile
Sellassie’s constitution of Ethiopia (1931) says in Article 5,’In the Ethiopian Empire supreme power
rests with the Emperor’ it cannot claim to be a genuine constitution in the substantive sense, since it fails
to institutionalize shared and limited government. It is also stated that the Ethiopian Emperor had an
uncontested and boundless power over the territory he ruled.
The 1955 Revised Constitution of Haile Sellassie
This constitution made a considerable departure from the 1931 constitution in:
 Introducing the notion of separation of powers(see Arts 5 and 6)in a better
manner
 Introducing the notion of independence of judges
 Expressly providing for supremacy of the constitution and amendment clause
(see arts 122 &131)
But here again, the old tradition prevailed because the Emperor’s powers were not limited (see arts 26,
27, 30, 36) which made the emperor above the law. Art 62(a) made the Emperor free from judicial
process. Rather, based on Article 35, the Emperor had the power to maintain justice. What is more, by
virtue of art 36, the Emperor was made the sole guardian of the people’s rights which were provided
under arts 37-63. As per art 26ff the Emperor was made the sovereign.

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Hence under the 1955 Revised Constitution of Haile Sellassie, the principle of judicial independence (art
110) conflicted with the unique and absolute power of the Emperor. The 1955 Revised Constitution
could not expressly provide for a body empowered to deal with constitutionality issues.

The separation of powers was applicable only at the level below the Emperor. Based on Art 30, the
Emperor had the power to make treaties. Of course, Art 64 provided that everyone in the Empire has the
duty to respect and obey the constitution, laws, decrees, orders and regulations of the Empire. But this
did not (at least in writing) include the Emperor (see also art 4).

Under the 1955 Revised Constitution, the Emperor had the power to initiate legislation (See Articles 34,
86, 88, 91, and 92). Art 88 made the publication of laws possible only after the Emperor approves.

 Ministers accountable to the emperor (Art 66).

 Senators appointed by the Emperor (Art 101).
 Judges appointed by the Emperor (Art 111).
By making the Emperor once again above the law, the 1955 Revised Constitution settled the balance in
favour of tradition-absolutism.

On the whole, the 1955 Revised Constitution served the same old purpose by a new procedure because
a) it failed to limit the powers of the Emperor, and b) it made all constitutionally established institutions
subordinate to the Emperor. Ultimately, both constitutions of Haile Sellassie (1931 & 1955), rather than
creating a constitutional monarchy, as claimed, amounted simply to monarchical constitutions(Paul H.
Brietzke,1994). In other words, the constitutions could not in any way serve as a restraint on the exercise
of power of the Emperor. Most importantly, feudal land ownership and the issue of ethnicity remained
unaddressed by Haile Sellassie’s constitutions. This failure to redress historical wrongs and to address
the manifest ethnic, religious, social and political inequality, has led to the 1974 popular revolution
which deposed Haile Sellassie, the last Ethiopian monarch ’s government.

IV. POST HAILE SELLASSIE CONSTITUTIONS

1) TheDerg (PMAC) and the PDRE Constitution

The 1974 revolution has brought an end to Ethiopia’s imperial regime. After deposing the Emperor and
suspending the 1955 Revised Constitution, the Provisional Military Administrative Council (PMAC)

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constituted itself as a provisional government. The Military regime ruled the country up to 1987
without a written constitution.

The Peoples Democratic Republic of Ethiopia Constitution (PDRE) was adopted by referendum in
1987. During its 13 years rule, the Military regime has addressed the land question ignoring the
country’s ethnic problem. What is more, by declaring Ethiopia as a unitary State in total disregard of
the strong demand for ethnic equality, the Derg continued with the old assimilationist policy of
creating one Ethiopian nation out of diverse peoples and cultures through forced assimilation.

According to the PDRE Constitution the National Shengo was made the Supreme organ of the State
to decide on any national issue (Art 62). Based on Art 84 of the Constitution, the President was
elected by the National Shengo but as to how he was elected, nothing has been provided in the
Constitution. The power of the PDRE President was not limited since he had control over the
parliament, Council of State and Council of Ministers.

 Art 86(1) (b) the president presents the Council of Ministers to the National Shengo
 Art 86(1) (c) He presides over the Council of Ministers
 Art 87 he can dismiss them
 Art 86(1) (d) Presents judges to the National Shengo
 Art 81(3) He is the president of the Council of State
The constitution could not separate powers so as to avoid arbitrariness and concentration of powers.
The infallibility of the president was taken for granted.

Art 6 of the Constitution made the Workers Party of Ethiopia (WPE) the guiding force of state and
entire society which bring in the hidden hands of the Party in the state affairs. Thus, the PDRE
constitution failed to create an independent body which controls constitutionality of laws. Art 118,
the supremacy of the constitution was expressly stated.In abolishing feudal land ownership, the Derg has
addressed one of the major problems in Ethiopia but has failed to properly address ethnic issue.

2) The Transitional Period Charter of 1991

The Derg’s constitution was a very short-lived one. After four years, the opposition groups were getting hold of
most of the parts of Ethiopia.

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A national conference was convened from the 1st to 5th of May 1991 which resulted in the signing of a Charter
(Charter No. 1 Negarit Gazeta No. 1, Year 50, Addis Ababa, 22 July 1991) by the representatives of some 31
political parties. By the words of the Charter, an 87 seat Council of Representatives was established together
with the Transitional Government of Ethiopia.

 TPLF, OPDO, EPDM, the three main members of EPRDF, each secured 10 seats and two
seats were reserved for another member of EPRDF mainly constituting former officers and were
later dissolved. In total EPRDF secured 32 seats.
 OLF secured 12 seats, and
 other ethnically based parties by and large were granted seats ranging from 1 to 3.

The conference had also agreed on some program of actions for the coming two years.

 Holding elections for local governments,

 the drafting of a new constitution,
 Electing members of the Constitutional Assembly that would ratify the constitution was to be
drafted, and
 Election of the National Assembly that brings an end to the transition was to be held.

3. The Charter and its clues for federalism

Even if there had been many elements that clearly imply how much federalism had been taken as the
bottom-line for all the contents of the Charter as well as Proclamation no 7/1992, no mention of the word
‘federation’ could be found in the total text of both. Even both documents ensure each nationality with the
right to self-determination including secession. The Proclamation specifically enumerated the powers of
the central government and those of the self-governments though the power seemed to have been
concentrated within the centre. Following is the description of some of the ideas that echoed the federal
state structure for the future Ethiopia.

From the outset, the composition of the participants in the May conference itself was an indication of
Ethiopia’s prospect concerning the state structure and the right of self-determination that it intended to
provide to its nationalities. Save the representatives from professional groups and members of the
university, members to the conference were entirely designated on the basis of nationality, either from
existing movements, or in some cases, notably in the South and Southwest, from organizations rapidly
formed in order to take advantage of the new political atmosphere.

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The Charter had shown a complete shift in terms of political power distribution, from the traditional
centralized system to the empowerment of the regions so that avoiding the regions’ marginalization
that persisted for long in traditional Ethiopia. The Charter, under its Article 2:

 Established the framework for the provisional government

 Guaranteed nationalities
 to preserve their identity,
 administer their own affairs within their own defined territory,
 the right to participate in the central government based on fair and proper
representation, and
 the right to self determination.

Article 8:

Expressly empowered TGE (Transitional Government of Ethiopia) all legal and political responsibility
for the governance of Ethiopia on the regions until it hands over power to a government popularly
elected on the basis of a new constitution.

Article 13:

Empowered TGE (Transitional Government of Ethiopia) to establish by law local and regional councils
defined on the basis of nationality.

Proclamation No 7/1992

 Established the national regional self-governments with 14 independent regions and

enumerated 64 nations, nationalities and peoples.
 The Proclamation provided for 48 of the identified nationalities to be able to start their own
national/regional self-government at the woreda level or above.

The charter and the proclamation explicitly provided that the boundaries of the respective self-governing
regions be defined on the basis of nationality as a means ensuring the guarantee of these
nationalities with their right to self-determination. The Proclamation distinguished regional self-
governments based on an agreement of two or more adjacent nationalities, and national self-governments
established by any nation, nationality or people.

The remaining other nationalities and peoples with small populations were defined as minorities, i.e. a
nationality or people which cannot establish its own woreda or self-government because of the small

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number of its population. The national/regional governments had law-making, executive and
judicial powers and had used them extensively until they were replaced by new elections with the
adoption of the 1995 Constitution.

In sum in Ethiopian constitutional development process we saw a shift in the transitional charter period.
Because first, by principally changing the unitary system to federal structure and second by
recognizing the right of peoples for self-determination. This is believed to have given a solution to the
long-standing nationalities questions that had been consistently ignored for the last many years. It was by
then, and still it is recognition of Ethiopia as a multi-ethnic state.