Chapter Four

Citizenship
States cannot be understood in the absence of citizens and citizenship. In the same way,
citizenship cannot be explained without the state. Thus, the notion of citizenship is important
both to the state and to individuals, since it denotes a basic relationship between the state and its
individual members.

The term citizen is derived from a Latin word ‘civitas’, which means resident of a city, as is used
by Greeks. Citizenship refers to rights and duties of citizens. It is the official recognition of an
individual’s integration in to the political system. That means, citizenship is the status of a
person to be a member of a particular state of country. Without the status of citizenship, a person
would be ‘‘stateless’’. i.e. he would not belong to any state. Therefore, a status of citizenship
gives a person his/her official recognition of the state to exercise citizenship rights and fulfill the
responsibilities.

Citizenship in all states is not the same. Non-democratic states reduce their people to mere
subjects that have very limited or no rights. Democratic states, however, have people/citizens/
those govern themselves and enjoy freedoms and equal rights in all aspects of life.

The historical Development of citizenship

In order to understand better citizenship, it will be very nice to go back and assess the different
historical, political, social, and cultural episodes that influenced and shaped the development of
citizenship.

Whenever the term ‘citizenship’ was used throughout history, it implied a combination of
obligations and privileges in the relationship between an individual and the state. The major
differences lie on the size and significance of the citizenry relative to the population and extent
of the rights and privileges given to citizens. The historical development of citizenship can be
disclosed as:

A. Citizenship in Ancient Greece

The idea of citizenship was commenced in Greece showing equal political rights combined
with duties and obligations. In ancient Greece it was not all the members which were provided
with equal rights. Stated in other way, the Greek though, founders of classical civilization and
exercised democracy for the first time had not opened the door of democracy for all members of
the city states. There was a big division among the citizens, plebeians, and slaves; the then social
groups in Greece. The citizens were few in number but held almost all power with in the society
such as directly participate in public affairs and decision-making processes, they had the right to

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elect or be elected, to own private property, to debate and make political speeches. Although, the
plebeians were free members of the society, they did not enjoy political rights. They owned little
property, depending on their labor for earning their living and constituted the lower class of the
society. The slaves were not free and had no political rights what so ever. They were considered
as properties of their owners.

Generally speaking, although the Greek were the first builders of democracy, their political
system was discriminatory, in the sense that citizens alone enjoyed exclusive social, economic
and political rights.

B. Citizenship in Ancient Rome

The Roman Republic was transformed in to the Roman Empire at the down of the Christian era.
Roman citizenship at first was a device for distinguishing between the Romans themselves and
the inhabitants of the territories incorporated within the Roman empires. So as to enhance
allegiance to the Rome, the residents of the occupied territories had been granted Roman
citizenship. In the later periods, when the Roman Republic were disintegrated and resulted in
absolute rule the people were treated as subjects not as citizens. Citizenship was confined to a
small and privileged group of the Romans only. Women were not considered as citizens. Only
those citizens were men who owned property. However later on, by 212 AD in order to promote
loyalty to the Roman Empire and its rulers, citizenship right was extended to all free residents of
the Roman Empire whether natives or inhabitants of the conquered territories.

C. Citizenship in Medieval Times

The idea and practice of citizenship deteriorated with the fall of the Roman Empire and theories
of feudalism in Europe. During these periods the people were anticipated to give their full
allegiance to the feudal lords or specific Kingdoms. Regardless of their loyality, they were not
treated as citizens and the term ‘’citizenship’’ was not used to include the people at large. Under
this system, there was little thought of citizenship. The political and legal relationship between
the serfs and king was non-existent. Rather, the peoples were considered as mere subjects rather
than citizens. It was only the economically privileged persons that were considered as citizens.

D. Citizenship in Modern Times

The modern notion of citizenship is highly related with the rise of the demands of the people for
escalated freedom and involvement in political, economic, cultural and social affairs of their
respective state. The contribution of the French Revolution and the American War of
Independence in the development of citizenship was indeed considerable.

Through course of time, the notion of citizenship came to be accepted as an instrument to

enhance individual liberties, popular government, political equality and participation. Citizenship
became the most pertinent political cohesion that related the individual with the state more

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vocally with the consolidation of modern nation-states. This means that the status of citizenship
grew from city-state to nation-state implying a resident of one state.

4.2 Aspects of citizenship

I. The social Aspects: citizenship refers to the rights and duties of citizens. These rights and
duties of citizenship are directly related to the social and cultural norms and values. Hence,
citizenship has a social aspect in it. In other words, citizenship is a social phenomenon. It is a
fact that citizenship can be attained through parent’s nationality but the ascription of a parent and
a child is a social process, not a mere biologically given episode. Stated in other words, the
selection of persons involved in relationship of parenthood is social even if the content of the
role of parents varies historically and cross culturally, and within the same society.

Adoption and marriage can be mentioned as they are social aspects of citizenship. In the case of
adoption, the full rights and responsibilities of parenthood are transformed from natural to social
parenthood and the child’s social and kinship position is also transformed from the biological
childhood to social hood. In this case, a social person is created by appropriation and people
become parents in every sense other than the genetic factor.

Therefore, the social aspect of citizenship discloses that the rights and duties associated with
citizenship status are socially determined and are socially distributed.

II. The legal Aspects: The legal aspect of citizenship can best be understood from the ensuing
statement that: the term “citizenship entails a relationship between an individual and a state
originating under terms prescribed by the law of that state and giving rise to certain duties and
rights, which such law attaches to citizenship’’. The above explanation reveals the fact that
citizenship has a legal aspect. Different countries pursue different laws in granting and denying
citizenship status. Even the same country can have different laws depending up on the prevailing
political conditions of that state.

III. The political Aspect: The political system in a country affects the citizenship status. In a
dictatorial or authoritarian political system, the rights and privileges of citizenship are enjoyed by
a small group of the society but the majorities are merely required to fulfill their responsibilities
or duties as members of that country. In a democratic system, however, citizens are expected to
express their allegiance to their nation and obey the laws. Citizens are treated equally without
any discrimination.

4.3 The Process of Acquiring Citizenship

Acquiring citizenship varies from country to country depending up on the existing specific laws
of each country. There is no clear cut uniformity in acquiring citizenship status. That means there
is no common standard that govern all state of the world. Thus different states pursue their own

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specific laws in granting and denying citizenship. Hence, the idea of citizenship is left to the
domestic jurisdiction of the state.

However, this does not mean that the state should follow arbitrary and groundless decision in
granting citizenship. Some broadly shared normative and customary principles are underscored
to minimize arbitrary deprivation of citizenship. In nut shell, the process of acquiring or loosing
citizenship involves complex issues related with the interest of states as well as the intentions
and interactions of individuals.

The three ways of acquiring citizenship are by birth, by law (naturalization) and dual (mixed)
system.

A. Citizenship by Birth

It is a fact that the majority of peoples in almost all countries acquire citizenship at birth.
Usually, people do not change their citizenship after acquiring by birth. The two different
principles and modes of acquiring citizenship by birth are jus soli and jus sanguinis.

Jus soli- It is a Latin phrase to mean right of soil. A child born in a particular state automatically
becomes a citizen of the state in which he/ she is born irrespective of his/her parent’s citizenship.
What matter most is the birth place of the child? A child born in one state territory has the right
to require citizenship but this is not always true to all. To make it clear, for example delegates of
foreign countries with diplomatic mission and international organization representatives and
workers cannot claim citizenship within their working territory.

Jus-sanguinis:- It is again a Latin term to mean the right of blood. It does not consider the place
of birth as important. Advocators (supporters) of this principle give the child the citizenship of its
parents automatically. What matters most in jus sanguinis is that the citizenship of the parents,
irrespective of the birth place. As far as Ethiopia is concerned it is clearly stated in proclamation
No 378/2003 Article 3 that any person shall be an Ethiopian national by descent where both or
either of his parents is Ethiopian. Further more for an infant child who is found abandoned in
Ethiopia shall, unless proved to have a foreign nationality, be deemed to have been born to an
Ethiopian parent and shall acquire Ethiopia nationality.

B. Citizenship by Law

Actually citizenship is attained by birth, but there is also times when citizenship is acquired by a
process known as naturalization. Hence, naturalization is the alternative method of acquiring
citizenship after birth. It is a process by which a state confers its citizenship on an individual,
who is originally not its citizen, as a matter of some voluntary acts and intention of the
individual. Obviously naturalization is under the authority of the state. The individual is expected
to fulfill some sets of criteria set up by that particular country. Citizenship by naturalization
embraces marriage, legitimating, option, acquisition of domicile, and so on. According to

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proclamation No. 378/ 2003, Article 5 a foreigner who applies to acquire Ethiopian nationality
by law is expected to fulfill the following conditions:

One who have attained the age of majority and be legally capable under the Ethiopian law;

Have established his domicile in Ethiopia and have lived in Ethiopia for a total of at least four
years preceding the submission of his application;

Be able to communicate in any one of the languages of the nations/ nationalities of the country;

Have sufficient and lawful source of income to maintain himself and his family;

Be a person of good character;

Have no record of criminal conviction

Be able to show that he has been released from his previous nationality or the possibility of
obtaining such a release up on the acquisition of Ethiopian nationality or that he is a stateless
person, and

Be required to take the oath of allegiance stated under Article 12 of the proclamation which says
that ‘’ I-----, solemnly affirm that I will be a loyal national of the Federal Democratic republic of
Ethiopia and be faithful to its constitution’’.

Marriage: - If a woman marries a man of another country, she can have the possibility of
acquiring her husband’s country citizenship. The woman has the option of choosing citizenship
of her husband’s and deleting her own country. Proclamation number 378/2003 Article 6 clearly
explains the fact that a foreigner who is married to an Ethiopian national may acquire Ethiopian
nationality by law when one fulfills the following requirements:

The marriage is concluded in accordance with the Ethiopian laws or in accordance with the laws
of any other country where the marriage is contracted;

There is a lapse of at lease two years since the conclusion of the marriage;

He has lived in Ethiopian for at least one year preceding the submission of his application; and

He fulfilled the conditions stated under Article 5(1,7,8) of the proclamation stated above.

Any child adopted by Ethiopian national, based on proclamation No 378/2003, may obtain
Ethiopian nationality by law when the following conditions are fulfilled!

He has not attained the age of majority,

He lives in Ethiopia together with his adopting parent;

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Where one of his adopting parents is a foreigner, such parent has expressed his stated in
writing ; and

The condition stated under Article 5 (7) of the proclamation has been fulfilled.

The government of Ethiopia also grants citizenship rights to those foreign individuals who have
made an outstanding contribution in the interest of Ethiopian with Ethiopian Nationality by law
irrespective of the conditions stated under sub-Articles (2) and (3) of Article 5 of proclamation
No 378/ 2003. Such types of acquiring citizenship is called special cases or functional
Nationality.

A person who has acquired Ethiopian Nationality by law may apply for his minor child living
with him in Ethiopia; provided, however, that where the applicant is the only naturalized parent,
the consent of both parents shall be required for naturalization of the child. A child whose
application for naturalization has been submitted in accordance with sub-Article (1) of this
Article 9 shall be conferred with Ethiopian nationality where the applicant is able to show that
the child is released from his previous nationality or the possibility of obtaining such release.

Legitimation: - This is citizenship by recognition. An illegitimate child has the right to get
his/her biological or caretaker father after Legitimation. Such process is usually attributed to a
father of multiple citizenship. Any child adopted by Ethiopia national, based proclamation No
378/ 2003) , may obtain Ethiopian nationality by law when the following conditions are fulfilled:

Grant on Application: - Different countries pursue different requirements to grant citizenship,

depending on their rules, by application. If individuals satisfy these requirements they can be
admitted to become citizens of those particular states. According to the 1930 Ethiopian
citizenship decree the requirements for naturalized Ethiopian citizenship were:

One who is majority (legal age), one who stayed in Ethiopia for at least five years; Not
dependent; one who speaks and writes Amaharic language; Not accused of crime or other related
illegal matters and who presents human witnesses.

Besides the above mentioned processes of attaining citizenship, citizenship can also be procured
by political case (process). It refers to acquisition of citizenship by conquest or cession of
territory. In this case, the entire population of the newly incorporated area may be made citizens
of the conquering state, although inhabitants of the territory sometimes are given an option of
maintaining their former citizenship. Consequently, when large number of citizens acquires the
same citizenship at the same time, it is referred to as collective citizenship.

C. Citizenship by Mixed (Dual) System

There are times when a person finds himself/ herself with dual (multiple) citizenships. This is
because of the existence of citizenship laws or naturalizations or termed as registration. When a
person has citizenship status of two countries, it is dubbed as dual nationality (citizenship). A

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person may have one because of his/her place of birth (jus soli) and another because of his/her
parent’s citizenship by blood (jus sanguinis). When a person has citizenship status of more than
two countries, it is termed as multiple citizenship. Some people have more than two citizenship
both as a result of jus soli and jus sanguinis as well as naturalization.

Modes of loosing citizenship

As different states pursue different principles in granting citizenship status, it is also true that
various states also adopt different principles on those citizens who violate the nations citizenship
laws.

In some states nationality may be renounced. The reason could be when the state harasses the
person (s) and when the person dislikes the policies or politics or ideologies pursued by the state.
A citizens may also be deprived of his/her citizenship, if he/ she is guilty of committing certain
serious crimes against the state such as to make access national secrets to alien country; to side
enemy state forces in time of war and so on. Citizenship may be lost if the person stays outside
of his/her country for along and continuous period. Ethiopia also pursue different mechanisms or
ways in denying citizenship rights. Renunciation is one mechanism way of loosing Ethiopian
nationality when the following conditions are fulfilled which are explained in Article 19 of
proclamation No 378/2003:

1) Any Ethiopian who has acquired or has been guaranteed the acquisition of the nationality of
another state shall have the right to renounce his Ethiopian nationality.

2) An Ethiopian who intends to renounce his nationality in accordance with this Article sub
Article (1) shall in advance inform the authority in the form prescribed by the authority

3) The renunciation of the nationality of a minor child pursuant to sub-Article (1) of this Article
shall be effected by the joint decision of his parents or, where one of his parents is a foreigner, by
the decision of the Ethiopian parent.

4) An Ethiopian who has declared his intention to renounce his nationality may not be released
until

a) He has discharged his outstanding national obligations, or

b) Where he has been accused of or convicted for a crime, he has been acquitted or served

the penalty.

5) The Authority shall, upon ascertaining that the provisions of this Article are complied with,
issue the applicant with a certificate stating the effective date of his release

6) Any Ethiopian who is not issued with a certificate of release in accordance with sub-Article
(5) of this Article shall have the right to appeal to the competent court.

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Where one acquires the nationality of another country that individual will loss his/her Ethiopian
nationality. Therefore, dual nationality is impossible in Ethiopian context Article 20 of
proclamation No 378/ 2003 supports the above statement by stating the following sub-Article:

1) With out prejudice to the provisions of Article 19 (4) of this proclamation, any Ethiopian who
voluntarily acquires another nationality shall be deemed to have voluntarily renounced his
Ethiopian nationality.

2) An Ethiopian who acquires another nationality by virtue of being born to a parent having a
foreign nationality or by being born abroad shall be deemed to have voluntarily renounced his
other nationality unless he has declared to the Authority his option to retain it by renouncing his
other nationality with in one year after attaining the age of majority, or unless there has been an
earlier express renunciation of his Ethiopian nationality pursuant to Article 19 (3) of this
proclamation.

3) An Ethiopian who acquires, in the absence of his own initiative, another nationality by the
operation of the law in connection with any ground other than those specified under sub-Article
(2) of this Article shall be deemed to have voluntarily renounced his Ethiopian nationality; if he:

Starts exercising the rights conferred to such acquired nationality or

Fails to declare his option to the Authority to retain his Ethiopia nationality by renouncing his
other nationality with in a period of one year.

4) A person who retains another nationality in addition to Ethiopian nationality shall be

considered an Ethiopian national until the loss of his Ethiopian nationality pursuant to sub-
Article ( 2) or (3) of this Article,

Chapter Five

Constitution, Democracy and Human Rights

Constitution is the base of everything. It is the source of democratic and human rights. Though
human right is natural and could not be given or taken by humanity, it is yet to be protected and
preserved by the laws of the states. Moreover, democracy and democratic governance promotes
human rights. Therefore, the nexus between constitution, democracy and human rights is so
strong and each conveys full meaning when manifested together.

Constitution and constitutionalism

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State is the political organization which is administered by the group of persons known as the
government. This government cannot run the state by suddenly passing fanciful ideas. There has
to be certain rules and principles on the basis and under the authority of which the government
can run the state. This set of principles is called a constitution. It is the fundamental law of a
nation or state that establishes the institution and system of government, defines the scope of
governmental sovereign powers, and guarantees individual civil rights and civil liberties.

This part emphasizes mainly on discussing the issues of constitutions and constitutionalism
Constitution as a fundamental or supreme law of a country or a state has its own principle. A
given country needs to have a constitution not only to limit the government power but also to
grantee freedoms and rights to their citizens. So, as you go through this part, you will notice not
only the major purpose and functions of a constitution but also its historical developments too. A
constitution can be classified as traditional and modern. In this part, however, we will give
emphasis to the latter one. Apart from this the main focus of this part will be on the analysis and
study of the Ethiopian constitutional history and development. Accordingly, the dynamics of
constitutional development in Ethiopia, and the changes and continuities of these constitutions in
terms of the political, economic and social matters they raised will be the basic case in point
under this part.

4.1. Meaning of Constitution

What do we mean by a constitution?

A constitution is the fundamental law of a nation or state that establishes the institution and
system of government, defines the scope of governmental sovereign powers, and guarantees
individual civil rights and liberties. It can be defined as a framework of a political society,
organized through and by law, that is to say one in which law has established permanent
institutions with recognized functions and definite rights. Again, a constitution possibly said to
be a collection of principles according to which the powers of the government, the rights of the
governed, and the relations between the two are adjusted.

Constitution is the aggregate of laws and customs under which the life of the state goes on.
Government without a constitution is a power without a right. Historically, before the evolution
of modern-style of codified national constitutions, the term was applied to any important law that
governs the functioning of a government. In this case we can say that constitution is a state book
of fundamental political principles, and establishing the structures, procedures, powers and
duties, of a government, which help the government to guide the nation/state.

To be brief, we know that State, like any other organization, requires a set of laws to govern
itself. Thus, a constitution is a body of laws that determines the nature of the State. It is a
fundamental document according to which the government of the State functions. A constitution

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is, therefore, the basic law which defines and delimits the powers of various organs of the
government and it also enumerates the basic rights of the citizens.

But whatever its form, a true constitution will have the following facts: first, how the various
agencies are organized; secondly, what power is entrusted to those agencies; and thirdly, in what
manner such power is to be exercised. Like a human body, constitutions have organs which work
harmoniously. In order to function well, a state or a political body is said to have a constitution in
which its organs and their functions are definitely arranged and are not subject to dictators.

What is the difference between constitution and constitutionalism?

Constitution consists of a set of rules or norms creating, structuring and defining the limits of
government power or authority. Understood in this way, all states have constitutions and all
states are constitutional states. Anything recognizable as a state must have some acknowledged
means of constituting and specifying the limits placed upon the three basic forms of government
power: legislative, executive and judicial powers. Constitutionalism is, thus, the idea that
government can and should be legally limited in its power, and that its authority depends on its
observance of these limitations.

There is a close connection between constitutionalism and the rule of law. Both are premised
on the importance of limits on the power of the state and its institutions, with law as the
principal means of defining and ensuring the limits. In all its successive phases,
constitutionalism has one essential quality: it is a legal limitation on government; it is the anti-
thesis of arbitrary rule; its opposite is dictatorial government, the government of will instead
of law. Both constitutionalism and rule of law were concerned about the limits on state
power, but unlike the origins of the rule of law, constitutionalism emphasizes the political
mandate and accountability of the government, which placed a greater importance on the
legislature.

 Have you understood the difference between constitutionalism and rule of law?

Constitutionalism is based on the notion of a supreme law which governs the jurisdiction and
powers of state institutions and determines the limits and mode of their exercise. The role of
the constitution has been to establish institutions of the state and to define their jurisdiction.
There is an assumption that due to underlying cultural understandings and a common history,
there is substantial agreement on values, aspirations and identity. It is indeed these
understandings (and joint commitment to live together) which makes it possible for the people
to form a state.

When scholars talk of constitutionalism, they mean not only that there are rules creating
legislative, executive and judicial powers, but that these rules impose limits on those powers.
Often these limitations are in the form of individual or group rights against government, rights
to things like free expression, association, equality and due process of law. But constitutional

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limits come in a variety of forms. They can concern such things as the scope of authority (e.g.,
in a federal system, provincial or state governments may have authority over health care and
education while the federal government's jurisdiction extends to national defense and
transportation); the mechanisms used in exercising the relevant power (e.g., procedural
requirements governing the form and manner of legislation); and of course civil rights.

Furthermore, constitutionalism is a system of political arrangements in which there is a

constitution, in which all (particularly the entire system of government) is governed by the
constitution, in which only the people's will can change the constitution, in which changes can
only be made rarely due to the difficulty of acquiring the necessary popular support, and in
which there are separation of power, checks and balances and an independent judiciary
dedicated to legal reasoning to safeguard the supremacy of the constitution. Thus,
constitutionalism need two things: first and for most there should be democratic constitution
and then this democratic constitution must be implemented.

Some scholars argued that, unless a constitution is supreme, it is difficult to talk of the existence
of constitutionalism. That is, the constitutional constraints on various branches of government
should not be unilaterally changed by the departments themselves. Constitutionalism is a
necessary foundation of rule of law. It is the limitation of government by law. Constitutionalism
implies also a balance between the power of the government on the one hand and the rights of
individuals on the other.

In sum, constitutionalism is the doctrine that governmental power should be constrained by

individual rights and a system of checks and balances, codified in a formal constitution. The
constitution should, moreover, be considered superior to other laws and be enforced within a legal
system with independent courts. At the core of this idea is the view that a well-functioning
political system needs a clear division of power.

Major Characteristic Features of a Constitution

Could you mention some of the characteristics feature of a constitution?

A constitution has distinctive features that distinguish it from any other laws. The following are
some of the features of a constitution.

Generality: a constitution provides the general principle of a state and carry on foundation and
sets out general framework of the law and the government. Other laws provide the details of the
subject for which they are created. Constitutional principles are a guideline for others laws. Any
law that contradicts the constitutional provision will be null and void. In this case, constitution
only states the general principles. Thus, this makes constitution different from other laws that
may found in a given country.

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Permanency: unlike other, laws constitution is made for undefined period of time. That means
constitution serve for a long lap of ages. It is purposely made to be stable and permanent. One of
the mechanisms to ensure this permanency is through constitutional amendment. Judicial
interpretation is also another ways of making a given constitution adaptability. In short,
amendment is necessary to offer stability in a country. Thus, constitutional stability is one of the
factors for creating a durable peace in a society. Unstable constitutional environment mostly
indicates a socio-political instability.

What do you think is the importance of making constitution permanent?

Supremacy: a constitution is a supreme law of the land. As a mother of law, it is original law by
which the system of government is created, and to which the branches of government must look
for all their powers and authority. It is original because it is directly made by the people as the
direct expression of the will of the people. To ensure this supremacy, the constitution needs to
have the following:

First and for most, the constitution must have a supremacy clause. All written constitutions have
this clause. This provision commands that individuals, government institutions, and private
institutions must observe the constitution. The second way of adjustment of a constitution with a
changing need of the people is via interpretation. But that must be in accordance with the
procedures established by the constitution. Otherwise the constitution is at the state of risk. In
majority of states, this task is given to the Supreme Court or a specialized constitutional court.
Thus, judicial review should be there to ensure the supremacy of the constitution. Finally, in
order to make constitution a fundamental law of the country we need special amending
procedures. If the constitution is amended by those in power, there might be a state of crisis.
Thus, the constitutions must state the amendment procedure clearly; this promotes its supremacy.

4.1.3   Historical Origin and Development of a Constitution

The rise of the constitutional state is essentially a historical process. The historical emergence
and evolution of constitution can be traced back to earlier stages of civilization. In the history of
human societies, the emergence of constitutional government is related to the desire to limit the
absolute powers of rulers over those who are ruled. In its modern sense, constitution emerged
during the 17th c in England. But the concepts and practices of constitution as political
phenomena extend further back in to previous historical periods.

The origin of constitution is related to, the law of Hammurabi in ancient Babylon, the Hebrew
constitution, the Greeks, the Romans and Magna Carta. However, here under we are going to
look at the modern constitutional practices.

Accordingly, in the modern sense, the US Constitution is considered to be the first written
constitution and it has had a profound influence in the history of constitutional writing in the
modern times. The writers of the constitution became the teachers of why and, most importantly,

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how constitutions should be written. The principal reason for the influence of the constitution
may be is because of its success. That is why the American constitution is the longest-lived
constitution.

 Why the American constitution lived long?

In modern times, almost all countries adopt a constitution because they need to begin with a
fresh start. People who administer their affairs according to traditions and customs do not need a
constitution. The memories of their elders are sufficient for them. Historically, whenever a
constitution has been framed, it had mostly followed a revolution. A constitution has been
intended to usher in a new social and political order. In the 18 thc, when the first written
constitution in the world appeared (i.e. US constitution), only the bare structure of a federal
republic government was laid down. That was a break with the monarchical colonial links of
Britain. Within two years, this constitution went through ten amendments for incorporating the
rights of the people in the form of limits to governmental power.

In many countries constitution is considered as an instrument in which government can be

controlled. Thus, at least an amendment of it can be taken place through a special process
different from that by which the ordinary law is altered. What is more, if an act of parliament or
an act of any state is contrary to the terms of the constitution, it is void. Historically, the need for
a constitution arises as soon as a source of power is no longer God, but the people. The people
need to formalize its social contract and to define the rules and procedure that regulate the
society and the power system in it. Every aspect and institution of human civilization requires
some form of government to prevent injustice and maintain order. People need boundaries;
citizens are subject to the laws of the land in which they reside.

Methods of Classifying a Constitution

In effect, it is difficult to divide states into classes by taking each state as a whole in turn,
because the totality of powers of all states is the same; that is to say, every state is a sovereign
body politic. If a community is not this, it is not a state. The only manner by which states may be
differentiated is according to the structural peculiarities of their governmental organization.
Therefore, methods of classifying constitutions are of various types and we can employ these
varieties for different situations. Accordingly we can classify Constitutions based on their forms:
written or unwritten type. The amendment procedures stated in constitutions is also another
method of classifying constitutions. Hence there are constitutions with rigid and flexible
amendment procedures. The further mode of selecting constitutions is based on the kind of state
structure made by the Constitution. In this regard it can be divide federal or unitary mode of
constitution.

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 Constitutions

Forms of Constitution Amendment Procedure

Written Unwritten Rigid Flexible

State Structure

Federal Unitary Confederal

Written Constitution:
Constitution: Majority of states of the world today has a written constitution. That is,
they have an assemblage of a single document, which, they call a constitution as fundamental
law of their state. Such a constitution has a set of rules, generally in written form, which identify
and regulate the major institutions of the state and govern the relationship between the state and
the individual citizen. In most countries the written constitution is the ultimate source of legal
authority; all actions of government and the law-making body (the legislature) must conform to
the constitution. In order to uphold and interpret the constitution there will be a Supreme Court.
As the constitution is the ultimate authority, any action which contravenes the rules of the
constitution will be both unconstitutional and unlawful. Written constitutions also contain
procedural rules for the amendment of the constitution.

The strength of a written or enacted constitution is that it is clear and definite. When the
constitution is in the form of a document, people have a clear understanding about the powers of
the government. In a written constitution the rights of the people are clearly stipulated in the
constitution. In a federal State like Ethiopia, there are two sets of governments: Federal
Government and State Governments. The written constitution mentions clearly the division of
powers between those levels of government.

The weakness of a written constitution is that it fails to adapt itself to changing conditions easily.
Generally, the process of amending or changing a written constitution is comparatively complex. It

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is generally said that written constitution is helpful in providing solid government, but this
viewpoint can also be disputed. For example, England is a well administered country though its
constitution is unwritten.

A written constitution has three important advantages: the first is that a single text contains
the sum of what state authority consists of, how it is constituted, how it can be used, and
what non-violent methods of addressing disputes are to be adopted. This gives clarity. The
second argument is that such a text can be made available to all inhabitants (and visitors).
The basis of the political system is therefore comprehensible to all, instead of in the hands of
a specialized guardian classes. This is vital when there are to be dealings between individuals
and the State. The third argument is that because the limits of state power are so clear, it is
necessary to invoke an amendment process, in order to change even a small component of the
constitution.

On the other hand, the disadvantage of written constitution may be the following: the first is that,
the implementation of a written constitution usually involves interpretation. In some instances,
such interpretation leads to dispute between branches of the government. It is also not possible to
absolutely define the extent of devolution of power among different levels of governance in a
country. Further, written constitution is not easily adaptable to changing circumstances to make
this real, written constitutions need to be continuously amended or modified.

Unwritten Constitutions: There are very few countries who are referred to have unwritten form
of constitution. Example, the British and Israel are stick to this form. In such nations there is no
one compiled document called a constitution. They may have dispersed legal documents, which
serve as constitution. But most of the fundamental rules of the political system of such nations
are in unwritten form. This may take a form of customs, understanding, precedents, conventions
etc…

In contrast the written form, one of the major advantages of unwritten constitution, relatively
speaking, is more flexible. However, it is disadvantageous because there is no single document
that clearly states the fundamental rights and duties of citizens and of governments. In this case,
it would be difficult to quickly determine which aspects of the constitution is violated and when.
Since there is no legal restraint and because it is not accessible to public, it can easily be
distorted or even changed without the consent of the people. As a result there may arise
differences in society regarding which conventions or custom is acceptable and which is not,
since there could exist different conventions and customs in a country. Because of its
inaccessibility, it is nearly impossible to create awareness through education on the fundamental
constitutional rights and freedoms, duties, and obligations of citizens.

Do constitutions are totally written or totally unwritten?

Simply, written and unwritten is a distinction between those rules regulating a government,
mostly rule of law-which are written down either in a constitution or in some act of parliament or

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other legal documents, and other rules, mainly the customs and conventions and usages
regulating the government, which have usually not been precisely formulated and put in writing.
Constitutions, whether written or unwritten, will share common features. They will identify the
principal institutions of the state – the executive, the legislature and the judiciary. In relation to
each of these, the constitution will specify their functions and powers. In addition the constitution
will identify the rights and freedoms of citizens, through a Bill of Rights which operates both to
protect citizens and to restrict the power of the state.

A constitution may be written or unwritten. A written constitution is always enacted while an

unwritten Constitution is evolved. A written constitution is one which is framed at a given time and
comes into practice on a fixed date. An unwritten constitution on the other hand is a result of
evolution; it is given by history. It is never framed by any Constituent Assembly. It is based on
conventions, customs and statutes that grow over the centuries. The British Constitution is the best
example of an evolved and unwritten constitution.

However, those nations who claim that they have a written form of constitution are, giving a
narrower definition to constitutions. This is because we cannot compile all rules governing a
political system in to a document called a constitution. Rules governing a political system may
have extra legal character in unwritten form likes customs, precedents, common under endings…

Accordingly, no political system can have all the governing principle in a documented form. By
the same token, all such legal principles cannot also be in unwritten form. In the British case,
even if the fundamental governing principles are in unwritten form it still has written legal
documents that cause some effect to the system.

To sum up, a constitution generally called written is one in the form of a document which has
special sanctity. A constitution generally called unwritten is one which has grown up on the basis
of custom rather than of written law. But sometimes the so-called written constitution is a very
complete instrument in which the framers of the constitutions have attempted to arrange for
every conceivable contingency in its operation. In other cases, the written constitution is found in
a number of fundamental laws which the constitution makers have either framed or adopted with
a view for giving as wide a scope as possible to the process of ordinary legislation for the
development of the constitution within the framework thus set. It is, of course, necessary to
distinguish between written and the unwritten constitution and, we shall refer to the former as a
documentary and to the latter as a non-documentary constitution. Generally, we cannot have a
totally written and absolutely unwritten constitution as far as the reality is concerned.

Rigid Constitutions: are those constitutions which set-up complex and special amendment
procedure, which makes changing an article of the constitution very difficult. This also reduces
the adaptability of the constitution to a new situation. Where constitutions were devised by their
founders as a complete statement of arrangements for the future, it will generally be difficult to
amend them. For this reason, a written constitution is particularly difficult to amend: it is ‘rigid’,

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rather than ‘flexible’ in nature. The Constitutions of, the United States of America, Switzerland and
Australia are considered as rigid constitutions.

Flexible constitutions: set up simple amendment procedure and there are no special procedures
for amending the constitution as such. It can be amended easily by an ordinary legislative process
without any special procedure. For example; the Constitution of England is flexible because any
provision can be changed by an act of Parliament.

The strength of a rigid constitution is that it is a guarantee against quick changes. Unlike a flexible
constitution, rigid constitution is stable. Moreover, the fundamental rights of the people and the
interests of the minorities are more secure under a rigid constitution. A flexible constitution,
however, is considered progressive in nature and helpful in the development of the nation as it
changes easily and adapts to the changing circumstances. A rigid constitution, on the other hand,
may not be easily changed according to the changing conditions.

However, the rigid-flexible classification may also not be absolutely used. Because, in reality
those constitutions with rigid amendment procedures have been seen frequently amending
themselves than those with flexible procedures. It depends up on the socio economic and
political interests of the ruling elites within a state. In addition, the rigidity and flexibility of a
constitution is more a matter of its amendment procedures provided by the constitution itself than
the form of the constitution.

Unitary or Federal: It is constitutions that distribute power among the different unit of a state.
But the model that is followed by constitutions in distributing state power differs from each
other. Some constitutions purely classify and decentralize power between the central
government and regional/local units and such constitutions are referred as federal constitutions.
Some other centralized state power in the hands of the central government, hence unitary
constitutions. Even though, as we have seen under chapter two, there are various kinds of unitary
and federal states, no constitutional state of today can be entirely outside these two categories.

What is the characteristics feature of unitary and federal state structure? Please refer your notes
under chapter two to respond to this question.

In general, classification of a constitution based on state structure refers to whether the state is
centralized or localized; that is to say whether there is a strong element of local government
within the state or not. In Great Britain, for example, local government plays a large part in the
political life of the community. The difference between the two types of state is that while a
unitary state is somewhat inactive in local government, however, federal countries like USA and
Ethiopia has a very active local government. Such power of the state (whether weaker or stronger
local governments) is the result of their constitutional provisions.

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4.1.4. Purposes of Constitution

The constitution sets out the form of the government, creates the branches of government and
determines their powers and authorities. These are one of the major purpose and functions of
constitution among others. Among the usually recognized purposes of constitutions the following
are the major:

1) A constitution is charter of government: government derives its whole authority

from the governed. The constitution sets out the form of the government, creates the branches of
government and determines their powers and authorities. It specifies the purpose of the
government, the power of each department of the government, the state-society relationship, the
relationship between various governmental institutions, and the limits of the government power.

2) The constitution is a job description: In a democratic state, the people as a whole

hire some officials to administer the government for the provision of public goods, and the
constitution is the employment contract and job description. Although many other laws are also
job descriptions for the government, the constitution is the highest. The constitution is a guide
for legislation and for the interpretation of legislation.

3) Put limits on the powers of government and has rights protection function:
Constitutional provision could be enforcing or empowering whose objective is giving powers to
government. But there must also be ‘Negative Clause’ or ‘No Clause’, so that a constitution
could be a guardian of fundamental rights. Negative clauses, by putting specifically what
governments must not do, will limiting and tie the hands of those who exercise powers.
Otherwise, the people will certainly be exposed to various kinds of abuses of power.

4) The constitution is a commitment device: In a democratic state, the constitution

binds not only the government, but also the people. Through the constitution, the people
collectively commit to certain institutional procedure for managing public affairs and resolving
social conflicts. Thus, the constitution not only limits the arbitrary power of the government, it
also prevents public administration from being poisoned by people's short-term temper and
passions. Through the constitution, the people collectively commit to be abiding by the terms of
constitution.

5) The constitution as a covenant, a symbol, and an aspiration: In so far as a

constitution is a covenant by which a group of people agree to transform themselves in to a
nation, it may function for the founding generation like a marriage concluded through the
pledging partners’ positive and active consent to remain a nation for better or worse, through
prosperity and poverty, in peace and war. A constitution may serve as a binding statement of a

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people’s aspirations for themselves as a nation. In short, a constitutional text may guide as well
as express a people’s hopes for themselves as a society. The ideals of the words enshrine, the
processes they describe, and the actions they legitimize must either help to change the citizenry
or at least reflect their current values. Otherwise, it will quickly fade. This is why we see
differences among constitutions.

Constitutional Experience of selected Countries (the case of USA and British)

The US and the British have different forms of constitutions. The British are obviously known
for having unwritten constitution, where as the US has a famous written constitution.

The reality with regard to the British legal history is that, they have no an assemblage of
document called a constitution. One justification related with this situation is that, in Britain most
historical phenomena, which would have caused promulgation of constitution, were turned
unsuccessful and resolved through other means of compromise, than causing constitution. This
analysis emanated itself from the theoretical establishment that constitutions are results of basic
social contradiction. Such theory emphasizes that after societies went through serious social and
political conflict they used to establish constitution as a means of compromise and starting life a
new and a fresh. But in Britain such historical incidents that might have caused the promulgation
of a written constitution had not reached to that stage.

But this does not necessarily mean that the British has no written aspect of a constitution. Most
legal documents has taken the form of evolutionary transformation and development in the form
of addressing specific problems arose in some specific moments, than adopting a document
called constitution all of a sudden.

There fore we can list out such dispersed documents, which were written on some specific
issues, to address some specific problems of their time. These include the Magna carat (great
charter) of 1215 (to limit the power of the king). The petition of right (1628) The bill of rights of
1689, the people representation act of 1832, the women franchise act of 1928(to allow women to
vote), the acts of union (1707 and 1800) when the British were united with Scotland and Ireland
respectively. And so on.

These documents represent the written aspect of the British constitution. These cannot fulfill the
criteria of being constitution because they are dispersed legal documents which do not reflect the
basic political elements of the system. The vital elements of the system rather are represented
more in the form of customs, beliefs, understandings, conventions and precedents. So the reason
why the British constitution is termed as unwritten is because the determinant political principles
of the state took the form of extra legal customary rules than a clearly stated document. Hence
the unwritten aspect dominates the written aspect of the constitution.

Unlike the British, who is geared towards peaceful transformation the US constitution is the
result of one big historical contradiction. That was the US Independence struggle against the

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British colonialists. Today’s US was once the colony of British and their successful struggle for
independence reached to its conclusive stage by promulgating constitution for the US.

The British classified their big colony in to 13 colonial states. Each colony has executive and
legislative authority. The executive (appointed by the British) was highly affiliated to the British
and protects their interest than the people in the states.

The legislature was a relatively independent organ which enjoys a considerable level of
autonomy from the British. So it was more favored by the people in the colonies, for it stood for
their interest.

But based on the decision of King George III of England in the mid 18 th C the power of the
relatively independent parliament was obliterated. Following this the king imposed too much tax
over the people in the colonies to finance its war in India and France. Previously the powerful
legislature can repeal such tax decisions but now it is not the case.

As the result the people felt that they were not well represented by the parliament but required
paying too much tax. This gave rise to the famous slogan ‘’No taxation with out representation’’

This lack of representation in decision-making on matters that affect their life discontented the
people and led them to fight against the British. Finally they managed to achieve their full
independence in 1883.

Those who fought for independence and the founders of the American state drew two basic
experiences from the previous colonial administration in their effort to formulate constitution for
US.

1. They were aspiring for strong regional Governments than central government. This is based
on the idea that a powerful national government as seen in the time of the colony is distrustful.

2. Because of also the distrust that they have over powerful executive, under the colony, they
opted for strong legislative. Based on these preferences the states established the articles of the
confederation (the first us constitution), which was drafted in 1777, ratified in 1781 and served
until 1787.

But later it was realized that articles of the confederation does not address the problem of the
states and even caused problems. Because of the institution of a very weak central government
such destructive deficiencies as lack of uniform tax regulation and economic policy, lack of
central organ to regulate inter-state economic relation and their relation with other countries,
absence of uniform tariff policy etc…were occurred.

These and other problems showed that the articles of the confederation must be reformulated.
The states recognized the problem and decided to work hard to wards it. Finally the convention
which was held at Philadelphia in 1787 quickly became the forum for drafting a new constitution

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for the US leaving the article of the confederation aside. This constitution was adopted in 1789
and it is the working constitution of US still to day.

4. Constitutional Experience of Ethiopia

4.1. The pre 1931 and the 1931 Ethiopian constitution

In spite of its long history of state survival Ethiopia has a very little experience with a written
constitution. It was only in 1931 that Ethiopia promulgated its first written form of constitution.
But before that the state has a far back constitutional history of unwritten form. Such lack of
written constitution does not necessarily implicate the total absence of constitutional rules and
principles in the legal history of the country.

Absolute monarchs, whose power and control was extended to every affairs of the state, have
dominated Ethiopian politics in this period of unwritten constitution. The territory of the state in
this period was also a function of the expanding capability of the monarchs to the outlying
territories of what is called Ethiopia today. Indeed the state was maintained and came to its
present form by the means of power and conquest. The state has always been peaked by the
monarch and has a unitary structure. The ultimate source of legitimacy for this all authority of
the monarchs was force and religion.

It is in the surrounding of such political atmosphere that, Ethiopia was said to have a long history
of unwritten constitution. The constitutional principles in this period was also the reflections of
such political set ups.

The country is known to have traditional constitutionally relevant documents and customary
practices as a representation of its pre 1931 constitutional history. Among others the Fetha
Negest, kibre Negest and the Ser’ate mengist are known to be traditional documents of
constitutionally relevant in nature. The Fetha Negest was a religions and secular legal provision
than being a definite constitution.

The kibre Negest was the most important traditional document that even defined who should
become king in Ethiopia i.e., succession of the throne in Ethiopia. This document takes the
Ethiopian history back to the Solomonic dynasty, where the queen of Sheba made romantic tripe
to King Solomon and gave birth to the first Ethiopia king Menelik. Based on this the document
determined that any king in Ethiopia must descend from the Solomonic dynasty or must have
such blood relationship with the dynasty. This principle served as a source of legitimacy for
almost all kings in Ethiopia.

The ser’ate Mengist of the nineteenth century also provided certain administrative protocol and
directives useful to the constitutional process.

There were also some customary traditional principles that represent constitutional ideas. For
instance the fidelity of the monarch to the church was written no where but the king showed

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strong affiliation to the doctrines of the Ethiopian Orthodox Church. The principle of Imperial
omnipotence was also a result of common understanding in the polity that the king is the most
powerful person in the state, which defined the ultimate authority of the state. The Imperial court
system which asserts that the king is the final court of appeal who gives irreversible decision is
also another traditional principle that has constitutional relevance.

The unwritten era of the constitution came to its end in 1931 with the promulgation of the first
written constitution. Both internal and external factors believed to cause the promulgation of the
constitution at that specific time. The emperor’s aspiration to view Ethiopia as a modern state to
the rest of the world was the external motivating factor. Establishing modern system and
structure of government by the constitution did this. Ethiopia was in need of reflecting a different
picture of its own to the rest of the world, that it is no more a back ward state. In addition to this
the emperor also has a deep interest of centralizing state power in the internal politics of the
country. This was effectively done by absolutist nature of the constitution.

Even if the external dream of the constitution was short of its target, the constitution is said to be
very successful in achieving its internal goal. It has become one of the most successful attempts
ever in Ethiopia, in centralizing state power. All modern Ethiopian rulers attempted to do this but
Haile Sellassie turned glorious in doing so. The constitution formalized centralization of state
power by employing its own mechanism.

Centralization of state power was basically effected through the creation of new administrative
units headed by appointed chiefs. This reduced the power of regional nobles, who were
previously so powerful locally but now their power is transferred to the monarch indirectly
through the appointed local chiefs by the means of the constitution. The establishment of
standing army and the setting up of a ministerial framework were some other steps in
centralizing state power. In the later case appointed ministries were decided to be directly
accountable to the king. This enabled the king to have a control over the executive.

As the result of such high centralization of power and upgrading of the absolutist nature of the
monarch, the constitution was said to be, a little more than an instrument of legalizing the
absolute power of him. Apart from such basic facts the constitution introduced some very
important innovations to the Ethiopian political history.

In relation to this the constitution established a bicameral parliament of the upper and the lower
house. The upper house was stronger than the lower and its members are to be handpicked and
appointed by the monarch from among the most important part of the nobility. The lower house
is later to be appointed by the members of the upper house. The primary function of these houses
was to play an advisory role to the monarch than making and approving laws. These chambers
can neither propose policy nor oppose a policy proposed by the emperor. They cannot also
challenge the executive without the permission of the emperor. As a result the chambers are

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considered mainly as the first attempt of parliaments in Ethiopia and served as Communication
Bridge between the government and the people than making laws.

As a further means of centralizing state power the constitution also institutionalized the
ministerial system and made all the ministries directly accountable to the monarch, thorough
Individual and collective ministerial responsibility. This made easier for him to control the
executive.

In the judicial branch the constitution structured two court systems as ordinary courts and
administrative tribunals. At the apex of the court system was the emperor’s chilot.

From these all facts we can say that the constitution was used as a fertile ground to get the
Emperors centralizing project finished. Apparently it was served as a means of providing legal
green light for the undisputed absolute power of the king. This was testified by the fact that all
branches of governments are under the direct scrutiny of the king.

4.2 The Revised constitution of 1955

After quarter of a century the revision of 1931 constitution and its replacement by another
constitution was found vital. There were constellations of events that led to the urgency of
revising the 1931 constitution.

One important event that took place and effected socio economic transformation in the country
was Italian occupation over Ethiopia. This event increased the country’s access to the outside
world and caused slight diffusion of western ideas in to the mind of the people. Further more
Italian built infrastructure facilitated communication between parts of the state. These are among
the factors that caused some form of transformation in the Ethiopian polity. These
transformations served as only secondary factors for the reformulation of the constitution.

The most important and top urgent factor that purely necessitated a hand in hand revision of the
constitution was the Eritrea federation with Ethiopia in 1952

Before 1952 Eritrea was under the colonial rule of Italy beginning from 1889. It was the defeat
of the Italian forces in the Second World War that brought the Eritrean issue in to attention. After
it has been controlled by the British between 1942-1952 Eritrea finally decided, by the UN
resolution, to unite with Ethiopia through federation.

This federation led to the incorporation of two other documents in to the Ethiopia legal system.
These were the federal act and the Eritrean constitution. The federal act was a document that
specified the terms of agreements for the federation between Eritrea and Ethiopia. In addition
Eritrean established their own constitution with the support of UN.

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Both documents were far modern and better than the existing traditional 1931 Ethiopian
constitution. They incorporated progressive political elements like democracy and human right,
which were unimagined in the 1931 constitution.

It was under such exigencies that the introduction of modern and progressive elements was
necessitated and the 1931 constitution was revised. Accordingly the revised 1955 constitution
showed a significant departure from the previous one. For instance it has given a textual
recognition for the rights and liberties of citizens even if it was short of practice.

Liberal individual rights such as the right to vote on the basis of universal adult suffrage was also
introduced to elect the chamber of deputies of the parliament. The basic principle of
constitutionalism and supremacy of the constitution was postulated under the constitution. It has
subsumed all other rules, laws, decisions and acts below the constitution and required conformity
to it.

Although these provisions were first hand attempts to the progressive advancement of the
political and legal structure of the state at the end the constitution had reaffirmed the
legitimatization of absolute power of the king in a unitarily structured state. It would be
convincing to list some of the power and prerogatives of the Emperor under the constitution.

With regard to the parliament:

The Emperor had the power to appoint the members of the senate (the upper chamber
Parliament)

He had the power to dissolve the more active lower chamber parliament.

He can veto legal proposal suggested by the parliament but he has the power to decree Laws
when the parliament is not in session.

In the executive,

He was empowered to create government agencies and determine their functions

He was commander in chief of the armed forces

He has supreme power to determine on foreign policy issues

He can determine on the church decrees and even appointment of the abun except on Doctrinal
issues.

Given these facts the centralization scheme of the 1931 constitution was under strict continuation
and the king remained to be the absolute power within the state.

4.3 The 1987 constitution of the people’s Democratic Republic of Ethiopia.

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Before the birth of the PDRE constitution a number of historical events took place within the
state. The preceding two monarchical constitutions were failed to address some of the basic
contradictions of the polity like religious and ethnic diversity. More over societal transformation
in terms of out look, thinking education and relative modernization was not accompanied with a
proportionate alteration in terms of administrative and political set-ups. Measured by this yard
stick the monarchical system was lagging far behind and surprisingly it was not even prepared
for change.

The cumulative effect of this was the fermentation of revolutionary forces, which were anti-
thesis of the status quo by the monarchical system. In the mid 1960 and early 1970 such forces
were staging opposition plots against the old system. This process which was ignited by the
Ethiopian student movement around socialist ideology, culminated in deposing the old traditional
system from power once and for all.

The long march of traditional feudal system came to its end by the 1974 Ethiopian
revolution .The state power after the collapse of the monarchy was assumed by the military Derg
regime. The provisional military administrative council (PMAC) has now become in charge of
the state.

Immediately after coming to power the Derg issued proclamation number 1/1974. The
proclamation addressed some basic issues, which were mainly geared towards outlawing the
traditional system and its institutions.

It suspended the 1955-revised constitution

Dissolved the two chamber parliaments

Legally suspended the Emperor from power and established the military government (The
Provisional Military Administrative Council)

This proclamation cannot be given a constitutional status because it does not touch basic
constitutional issues other than deposing the Emperor from power. This may lead us to the
conclusion that between 1974-1987 was a period of constitutional vacuum in Ethiopia.

The PDRE constitution which was said to be adopted after a nation wide public discussion at the
grass root level evaluated to mainly reflect socialist ethos and principles, giving highest premium
to the unity and national integrity of Ethiopia under the motto “Ethiopia Tekidem’’.

The constitution is known for its fundamental departure in terms of issue and ideology from the
preceding two. The preamble itself talks about the sovereignty of the working people and that
Ethiopia is a multi-national state and the right of these diverse nationalities must be respected
equally.

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As a continuation of the preamble the constitution under Art (2) approved the equality of all
nationalities and the equal consideration of their culture, language, history. It was also stated that
effort would be underway to reduce regional economic disparity. In relation to this, the
constitution established a unitary state with administrative and autonomous regions, provided
that autonomous regions would be provided more independent power and authority from the
central government than the administrative regions. Accordingly Tigray, Eritrea, Assab, Dire
Dawa and Ogaden autonomous regions were established and another 28 administrative regions
were also the cases.

The constitution also approved that ultimate power (popular sovereignty) resides in the working
people. The assembly of the National Shengo determined to be a means of expression of their
will. This Shengo was given the ultimate political power in the state, which can supremely
decide on most important issues.

Parallel to this legislative organ, the council of the state (a very strong executive organ headed by
the president) was also established. But the constitution conferred most power of the state on the
president. He was the head of the state, the council of the state, the Shengo and the armed forces.
This led to the suppression of the concept of separation of power. On the judicially side, an
independent judiciary headed by the Supreme Court was the case.

The democratic provision of the constitution focused on democratic centralism, which is a

socialist form of democracy. Such democracy allows only the existence of a single state party,
which centrally controls and guides the politics of the state. In addition, long lists of rights and
freedoms were also stated in the constitution such rights as freedom of speech, opinion,
expression, assembly, religion… were provided under the frame work of democratic centralism.

All in all the deep scrutiny in to the constitution testifies that the state is strictly unitary type
where there is high centralization of power in the hands of executive as dominated by the
president of the state. In addition giving too much emphasis to national unity and emotional
indignity of the state, most part of the constitution has also centrally focused on basic principles
of socialism. This unitary socialist state by the constitution gave a very little concern for human
right and ethnic self-assertion, and no concern for federalism.

4.4. The Transitional Charter of 1991

The transitional charter was promulgated shortly after the fall of the government of the PDRE in
1991. It served as the law of the land for the transitional period. The fall of the Dreg regime was
contributed by bundles of factors. But basically the oppressive end suppressive rule followed by
the regime is of significant contribution.

The regime was in lack of the political will to address the different problems existing within the
state especially its resorting towards sheer use of force to solve the nationalities problem was
devastating both for the state and later the regime itself. It was at war in different fronts. The

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EPLF was fighting for the independence of Eritrea. TPLF was another armed struggle in the
northern Front and OLF was launching attack from the southern Front. There were also other
situations that put the regime in to a precarious situation like heavy burden of military
expenditure, continuing famine, war, destruction economic mismanagement and wide spread
corruption ruined the economy and the life of the people.

This in effect reduced the regimes legitimacy. Externally the previous socialist states that were
feeding the regime with military hard wares and economic aid are now begun to follow in ward
looking foreign policy that led to the end of the cold war, the era of ideological conflict between
the socialist and capitalist blocs. This led the regime to serious lack of legitimacy internally and
external political bankruptcy. The cumulative effect of these all factors is the collapse of the
regime.

In May 1991 EPRDF took control of state power and in July 1991 it has called up on a
conference on peace and Democracy. On this conference various political parties were invited
(ethnic based parties) that reflect and represent the specific interest of their ethnic groups. These
parties ranges from those parties that made much contribution to the fall of the previous regime
through armed struggle to parties established for the purpose of representation after the war.

Basically when these parties came to the conference there is a consensus that coalition 0f
democratic forces must establish a transitional Government. This government must take such
responsibilities as facilitating the drafting and adoption of a new constitution and preparing a
ground for national election.

At the conference on peace and democracy participating parties agreed to establish the
transitional council of representatives and transitional government drawn from the council in
proportion to the parties represented there .The conference was culminated in adopting a charter
that for the duration of transitional period was to serve as the law of the land. The charter has its
own peculiar contributions and marked another discontinuity in the constitutional development
in Ethiopia. It was a very short document that addressed only some fundamental issues. The
preamble stated that “it is the starting of a new chapter in the Ethiopian history in which
freedom, equal right and self determination of all nationalities shall be the governing principle of
economic, political and social life.

The charter puts a high premium on human rights. On its article (1) it stated that such rights will
be practiced on the basis of UDHR and individual human rights are respected fully and without
any limitation what so ever. Specific emphasis was also given on freedom of concise, expression,
association, assembly, demonstration and the right to organize political parties, if such acts do
not infringe up on other’s right.

Article (2) is mainly devoted to recognizing rights of nationalities and peoples of Ethiopia,
Accordingly nationalities were allowed to administer themselves in their own jurisdiction and to
be fairly represented at the level of federal Government. It was also approved that all

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nationalities can promote their language, history, culture and preserve their identity. If the above-
mentioned rights are not respected they can ask independence from the Ethiopia state.

Even if the charter acknowledged the right of nationalities to administer themselves, it has said
nothing about the establishment of federal structure for Ethiopia. But the inclusion of such right
implied the envisaged structure to be a federal type.

The charter has further provision on the establishment of a transitional government of Ethiopia.
This government was decided to consist of the council of representatives (the legislative organ),
the council of ministries (executive) and an independent judiciary. The council of representatives
is constituted in such a way that those parties who were invited to the conference on peace and
democracy were given the same number of seats in the council, which made the council to be the
replica of the participants in the conference

The council of ministries was elected from within the members of the council of representatives.
The procedure followed was that the council nominated and elected the president of the state,
who further nominates the PM and the PM again nominates the minis tries. Each nomination is
subject to approval by the council of representatives. The power and authority of the legislative
was outlined on Art - 9 of the charter, where as such definition of power was not the case to the
executive and judicial organs.

One basic and most important responsibility given to the transitional government is to prepare
the state to full democracy. As part of this effort the council of rep preservatives was mandated
to the making up of a new constitution to the state. The council accordingly established a
constitutional commission i.e. a body that drafts a new constitution to the state.

The draft constitution prepared by the constitutional commission decided to be presented for
discussion to the council of representatives. But the council was not provided with the final
power of approval (only discuss and forward). The adoption of the constitution required the
formation of an organ called the constituent assembly

The constituent assembly was formed after a separate election made by the public in June 1994.
This organ had 557 members who are elected by the people and it has only one function and that
is to discuss on the drafted constitution and adopt it. In the end the constituent assembly met for
two months and it has introduced only few changes to the draft constitution. On 9 December
1995 the constituent assembly approved the draft constitution for warded to it by the council of
representatives.

The charter was a very brief and compact document that contains only 20 articles. So it was too
brief to elaborate on some constitutional principles. As the result some very important
constitutional principles like determining the structural arrangement of the state, clearly defining
the power and authorities of the PM and the ministries were not done by this document.

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To fill this gap the charter must have been supported by other legal proclamations, that give
some more elaborations on some issues that the charter gave less attention As part of this effort
proc - No – 1-1991 defined the powers and functions of the President and another proclamation
No 2-1991 specified the power and function of the prime minister and the council of ministers

The main task of politically structuring the state on the basis of decentralization was later
effected through proclamation No 7 /1992, which is known as National Regional self
Government proclamation. This proclamation laid down the basis for the self-administration
scheme of the various Nationalities in Ethiopia. The proclamation identified some 63 Nations
Nationalities and peoples, on the basis of which 14 Regional self government administrations
was established. Out of these total regions only 4 were having one dominant ethnic group,
which made the self-government plan difficult

In any case 48 nations’ nationalities and peoples were allowed to establish their self
administration at the woreda level and above, where as the rest of the Nationalities referred as
minority Nationalities were mentioned to be represented at the woreda council of their proximity.

The proclamation has also done the task of center regional power sharing between the central
and regional governments. The document stated that the national regional governments are
subordinated to the transitional central government. The power sharing formula dictates that
except for some specifically enumerated powers to the central governments all the rest powers
would be left to the regional administration. Accordingly except for some exclusive matters that
are left to central government because of their nature as defining economic policy, printing of
money, foreign policy, administering statewide projects, communication network… all other
powers is to be given to the regional governments. Executive, legislative and judiciary power
was also guaranteed for the regions to enable them exercise their power.

Generally speaking the transitional charter has not mentioned about federal structure and the
transitional government is not a full-fledged federal type. But the provisions on the proclamation
envisages establishment of ethnic based federalism for the future, which really was the case
under the 1995 Ethiopian constitution.

4.5 The 1995 FDRE Constitution

The approval (adoption) of the FDRE constitution on 8 December 1994 marked the end of the
era of the transitional charter. The responsible organ for the discussion and adoption of this
constitution was the constituent assembly. This organ was formed after a separate election held
on 5 June 1994. Candidates were competing for the total of 557 seats in the assembly out of
which 539 was won by EPRDF and its alliances.

The constituent assembly convened for the approval process beginning from 28 October 1994.
The assembly met for two month. It has established committees of different types to deal with
various constitutional issues as government structure, the economy including revenues source,

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legal issues and the issues of human rights. For some specific issues that need special
professional consultancy experts were invited to give their view and opinion. At the end of these
all processes the assembly adopted the constitution with only few changes after it was handed to
it by the constitutional commission, a body which was responsible for the preparation of the draft
constitution.

Measured by some criteria’s the 1995 FDRE constitution has shown a significant departure from
the past. The state structure, which it has established, the system of government and the human
right provisions are some that should be mentioned. As compared with previous constitutions of
the country that kept they busy of centralizing state power.

The constitution pioneered federal state structure on ethnic lines. This was unprecedented in the
history of the country. The necessity of such state structure was justified by EPRDF as a means
of reflecting the nationalities demand to self administration and autonomous arrangement. Such
demand previously was suppressed by the centralizing effect of authoritarian governments, who
were the makers and breakers of the state.

The human Rights provision on the constitution was also another departure from the past; in
terms of the attention it was provided. Almost 1/3 of the constitutional provision was dedicated
to the discussion of human tights and fundamental freedoms in accordance with the UDHR. In
addition to this all federal and state government organs were also given the responsibility to do
their level best towards the respecting of these rights. To reduce frequent diluting of the
provisions on human rights extra stringent amendment procedure was introduced as a method of
protecting it. Above all the House of peoples representatives was also allowed to establish “state
of emergency board’’ when it declares state of emergency. This body is given the power to asses
and report whether in human treatments were committed under state of emergency and
recommending to the prime minister and the council of ministries to take corrective measures
incase such things were committed. These all provisions showed the emphasis given to the
provisions of human rights and fundamental freedoms.

The text of the constitution in its further provisions gave birth to the two house
parliament’s .These Houses are the house of peoples Representatives and the house of the
federation. These two houses were provided with their own power and responsibility. The
independent authorities of the regional governments were again proved when the constitution
gave legislative, executive and judicial authority to them. So the state governments are allowed
to have their own Regional councils. The independence of judiciary and the court system was a
clear case point in the constitution together with the appealing system.

The constitution further stipulated five basic principles as guiding points for the whole other
provisions of the constitution.

These and others were some of the most important contributions of the constitution, which we
are going to discuss case by case in the coming parts of this Module.

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Definition and forms of Democracy

Can you define democracy in your own words?

It is evident that the term democracy is used to cover a wide range of political systems; some of
which are old and experienced, while others relatively new and inexperienced. Their rate of
advance towards their political, social and economic goals varies widely. Despite these facts,
scholars, politicians and others attempted to define democracy in various ways. To this end, the
following are some of the possible definitions of the term democracy.

The word democracy is a term that comes from Greek and it is made up of two words demos,
which means people and kratos, to mean to govern, to rule. “Democracy” can then be literally
translated by the following terms: Government of the People or Government of the Majority. It is
the rule of many people (majority) but the rights and interests of minorities should also be
protected and respected. Convincingly it can be also said that Democracy is a people centered
system, where the people are the heart, the root and also the fruit. The fruits of democracy are
prosperity, good quality of life and well being, human security, human dignity and participation
of the people in all decisions affecting their lives.

The dictionary definition of the term entails that democracy is a system of government in which
people hold the ruling power (the highest/supreme political power resides in the people) either
directly or indirectly through their elected representatives. Accordingly, democracy embraces the
principles of equality, individual freedom and opportunity for the common people, as those who
actually wield political power. It is the system in which people govern, rule or administer their
day to day affairs and they are the sources for authority of their government.

From the perspective of participation, democracy can be explained as, the mobilization of
constituent groups around the issues and problems of common concern, the organization of
forums for the expression of alternative views on the issues, and the implementation of decision-
making procedures based on majority rule. According to this definition, since the practical
establishment of democracy depends on individual citizens’ participation, is difficult to influence
government decisions or policies in the absence it.

According to US former president Abraham Lincoln, democracy is "…government of the people,

by the people and for the people". To put it another way we can say that a government comes
from the people; it is exercised by the people, and for the purpose of the people’s own interests.

Democracy is also refers to the management of conflicts. It is also used to prevent conflicts
before they occur using the values of tolerance, mutual respect and understanding, open-
mindedness, etc. these values are particularly important in diversified societies where we find
divergent ideas, interests, values, goals, etc.

What are the forms or ways of exercising democracy?

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There are two ways of exercising democracy i.e. direct and indirect (representative)
democracy. In fact both have advantage and disadvantages.

Direct democracy

Direct democracy (pure democracy) is an exercise of democracy, in which ‘all citizens’

without the intermediary of elected officials can participate in decision-making process. This
belief is based on the right of every citizen over a certain age to attend political meetings,
vote on the issue being discussed at that meeting and accepting the majority decision. Part of
this belief, is the right of every one to hold political office if they choose to do so.

Direct democracy also believes that all people who have the right should actively participate
in the system so that any law passed does have the support of the majority. Direct democracy
gives all people the right to participate regardless of religious beliefs, gender, sexual
orientation, physical well being etc. Only those who have specifically gone against society
are excluded from direct democracy.

The difficulties of direct democracy are well known. When the people of a nation cannot
meet to take decisions, direct forms of democracy are incapable of replacing representation.
However, there are areas in which they can complement democracy. Direct democracy can
be put to local committees, schools and citizens' associa tions, where they can discuss and
submitted for collective decision. However, this is not possible with more complex and
general matters.

Most constitutions envisage a procedure for the direct consultation of all citizens, namely the
referendum. The practice of holding referenda on precise points should be used frequently and
defined with precision. Referenda could be held at the local, regional and national levels.
Direct democracy is fine in theory but its practice does not always match the theory. In direct
democracy, members of community meet at certain place to discuss issues and arrive at decision
either by consensus or by majority vote.

The origin of direct democracy can be traced back to ancient Athens. In the ancient Athenian
city-state, all adult male citizens were used to meet in assembly and made decisions.
Athenians were ruling themselves directly without intermediaries of representatives. Political
participation in Athens, however, was not all-inclusive and opens to all. Women, slaves and
aliens were not considered as citizens and hence were not allowed to participate in the
assembly. In strict words, the Athenian democracy was not an ideal or pure model of
democracy. Nevertheless, the Greek experiment of democracy is generally considered to
have provided important lesson for today's world. This is partly because of the facts that:

It was the first known example of democracy, and

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It was carried out in circumstances that can never be repeated, which makes it possible to study a
much simpler form of democratic government.

The expression 'direct democracy' is subject to misconceptions. The equal right of all citizens
to participate in the processes of government did not mean that every decision was taken at a
kind of mass meeting. Rather it meant that all citizens had equal right to membership of a
number of governing bodies. But these governing bodies had a manageable size. This is the
modern type of democracy that we have today.

Indirect (Representative) Democracy

A representative democracy is where citizens within a country elect representatives to make

decisions for them. In this regard, the meaning of representative form of democracy is that the
whole people cannot directly participate in their own affairs but through their representatives,
which are periodically elected by the people themselves. For instance, every 5 years in Ethiopia,
the people have the chance to vote into power those they wish to represent them in the
Parliament. The Parliamentarians meet in the House of People representatives to discuss matters
and pass acts which then become Ethiopian law. Within the House of People representatives,
each elected Parliamentarians represents all citizens. The voters passed the responsibility of
participating in law making to the Parliamentarians. In this case, leaders must maintain some
contact with voters so as to stay in power. However, if they fail to perform (or if the party has
done badly during its time in office), they can be removed by the people. In this way, the people
exercise control over their representatives.

Then what is the difference between direct and indirect democracy?

The difference between direct and indirect democracy is fairly simple. In a direct democracy
citizens make decisions directly by proposing laws or referendums. An indirect democracy, on
the other hand, uses a small group of officials to make decisions of importance on behalf of their
constituents. In both cases, the input of the people is the cornerstone of the government but the
government could be run in different ways.

To sum up, let me ask you a question, is representative government working well in our country?
The answer to this question depends on what we think the purpose of representative government
is. Most research in political science assumes that the purpose of representative government is to
represent the will of the people by translating popular sentiment or public interest into
governmental policy. It, therefore, assumes that a good measure of the performance of
representative democracy, at least in its representative capacity, involves comparing policy
results with public opinion as it is or as it should be.

Approaches of democracy

Substantive Views of Democracy

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The substantive view concentrates on what a government actually does, that is, the policies it
makes should fulfill democratic ideals. A substantive theorist would not recognize a decision that
violated those ideals as democratic, even if it was made in response to majority wishes.
Substantive theorists, however, do not agree on the contents and nature of these democratic
ideals.

Substantive democracy is a form of democracy in which the outcome of elections is

representative of the people. In other words, substantive democracy is a form of democracy that
functions in the interest of the governed. Though a country may allow all citizens of age to vote;
this characteristic does not necessarily qualify it as a substantive democracy.

In a substantive democracy, the general population plays a real role in carrying out its political
affairs, i.e., the state is not merely set up as a democracy but it functions as the one as well. This
type of democracy can also be referred to as a functional democracy.

Procedural Views of Democracy

The procedural view stresses the form and process of government, or how the people govern.
Procedural democracy emphasizes on the principles of universal participation, political equality,
and majority rule. Modern nations are too large to employ direct (or participatory) democracy,
and they must rely on indirect democracy in the form of representative government. The
procedural view of democracy also insists on the principle of responsiveness, that the
government should follow the general thrust of public opinion. In other words, the procedural
view of democracy sets forth the principles that describe how government should make decisions
and address three distinct questions:

Who should participate in decision-making?

How much should each participant's vote count?

How many votes are needed to reach decisions?

Of course, there is no simple answer to these questions and as such there are various perspectives
on those issues. In brief, procedural democracy is a democracy in which the people or citizens of
the state have less influence than in traditional liberal democracies. This type of democracy is
characterized by voters choosing to elect representatives in free elections. Procedural democracy
assumes that the electoral process is at the core of the authority placed in elected officials and
ensures that all procedures of elections are duly complied with. It could be described as a
democracy in which only the basic structures and institutions are in place. Commonly, the
previously elected representatives use electoral procedures to maintain themselves in power
against the common wish of the people, thus awkward the establishment of a full-fledged
democracy. Procedural democracy is quite different from substantive democracy in that it
manifests equal participation of all groups in society in the political process.

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  Discuss the difference between substantive and procedural views of democracy?

What are the theories of democracy?

To understand better what we thought above, let’s see the theories of democracy including:
liberal democracy, economic democracy, social democracy, and developmental democracy.

Liberal Concept of Democracy

What are the fundamental thoughts of liberal democracy?

Liberal democracy advocates the principle of private enterprise and the guarantee of basic civil
and political rights such as freedom of speech, religion, the right to elect and to be elected, etc.
The state intervenes in order to protect an individual and sections of society from the evils of free
private enterprise, and to promote greater social efficiency. Liberal democrats, however, have
emphasized individual freedom and demanded that the state shall not lose sight of this in the
search for social justice. Liberal democrats accept inequality or privilege so as to safeguard
individual freedom.

In nutshell, liberal democracy is a system of government in which the people govern themselves,
criticize leaders of their government and choose new ones in an election. A basic belief of liberal
democracy is that people of different interests and backgrounds have different political opinions.
Democratic government rests on public opinions since in such a system there is a freedom of
expression. Liberal democracy aims at a just and rational organization of authority in human
society under the guise of the system of capitalism.

Economic Democracy

Economic democracy is the transfer of economic decision making power from the few to the
many. Capitalist democracy, according to economic democracy advocates, does not guarantee
universal rights to decent food, housing, employment, child-care, education, or health care. There
are no rights guaranteeing control over the fruits of one's labor and control over the work process
itself. This is because of the fact that these rights contradict the unequal distribution of wealth
and power and the desire to get rich. Formal liberal democracy helps to legitimize corporate
capitalism. True democracy, however, cannot exist without economic democracy and economic
democracy cannot exist under the principles of capitalism. Here, to speak of economic
democracy is to advocate democracy for the poor as well as the rich. As such, economic
democracy is the transfer of economic decision making from the few to the many. In this case,
the assumption is that when workers and the poor control production, democratic choices to
work, employment, income, technology, and the like can be extended.

Social Democracy

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Social democracy is the result of two factors. These are: the changing nature of national
economies, and the changing nature of economic relations among society. Social democracy is
sometimes called social equality, which aims to give all citizens equal rights under the law. All
laws apply equally to all citizens regardless of their wealth, race, and religion, ideological
outlook, sex, and the like. The goal of social democracy is to bring about equality and classless
society through reform within the guise of capitalism. In this case, it recognizes that individual
background, abilities, efforts and so on to determine his/ her way of life. And hence, this is to
ensure everyone an opportunity to make full use of his/her abilities. In other words, social
democracy calls for social justice and economic empowerment of the subaltern (subordinate)
classes. To this effect, it is concerned with the provision, among others, of social security
service, housing, free education, health and medical cares, and the like.

Developmental Democracy

Another model, the developmental democracy, views human beings as capable of civic virtue.
Supporters say that through involvement in government and community affairs, persons can gain
an understanding of the public good and what it requires. Good citizens aware of and participate
in government and civic affairs through voting, expression of their opinions to representatives,
and sometimes even public service. Involvement in democracy is both a way of educating people
and increasing their ability to better themselves. Through the exercise of judgment on political
issues, citizens can better exercise judgment in other areas of their lives. The Developmental
model utilizes indirect representation simply because of the impracticality of direct involvement
such as that of the participatory democracy. Political and social equality exist in a developmental
democracy which advocates that people can achieve civic virtue and become conscious through
active participation in democracy. Some of the attributes of a good citizen include: civic-
mindedness, open-mindedness, tolerance, patriotism, civility, peaceful resolution of conflicts and
the like.

How do you conceptualize the notion of Developmental state? Discuss on the debate of
democracy in developmental state states like Ethiopia

Fundamental Principles and Values of Democracy

As we have seen above two individuals may speak about democracy, but there understanding
might not be similar. However, if we are aware of the fundamental principles and values of
democracy such differences may not be as such serious. Now let us see some of the most
frequently mentioned universal principles and values of democracy. These basic principles that
have identified by people from around the world must exist in order to have a democratic
government. These principles often become a part of the constitution or bill of rights in a
democratic society. Though no two democratic countries are exactly alike, people in democracies
support many of the same basic principles and desire the same benefits from the government.

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Participation Citizens: one of the most basic evidences of democracy is citizens’ participation in
government. Participation is the key role of citizens in democracy. It is not only their right, but it
is their duty. Citizen participation may take many forms including standing for election, voting in
elections, becoming informed, debating issues, attending community or civic meetings, being
members of private voluntary organizations, paying taxes, and even protesting, etc. This active
participation of citizens in all affairs of his/her country is considered as a cornerstone to build a
better democracy.

Equality: democratic societies emphasize the principle that all people are equal. Equality means
that all individuals are valued equally, have equal opportunities, and may not be discriminated
because of their religion, ethnic group, gender or sexual orientation. In a democracy, individuals
and groups still maintain their right to have different cultures, personalities, languages and
beliefs. Do you agree with this idea?

Political Tolerance: a democratic society is often composed of people from different cultures,
religious, and ethnic groups who have viewpoints different from a majority of the population, but
all are tolerant of each other. A democratic society is enriched by diversity. Democratic societies
are politically tolerant. This means that while the majority should rule in a democracy, the rights
of the minority must be also protected. People who are not in power must be allowed to organize
and speak out. Political minorities are sometimes referred to as “the opposition” because they
may have ideas which are different from the majority. If the majority deny such minority rights
and destroy the opposition, then they also destroy democracy.

Accountability: implies that government officials are answerable to the decisions and actions
they took. In a democracy, elected and appointed officials have to be accountable to the people.
They are responsible for their actions. Officials must make decisions and perform their duties
according to the will and wishes of the people, not the will of themselves.

Transparency: implies openness of the activities of government officials and institutions to the
public. For government to be accountable, the people must be aware of what is happening in the
country. This is referred to as transparency in government. A transparent government holds
public meetings and allows citizens to attend. In a democracy, the press and the people are able
to get information about what decisions are being made, by whom and why.

Free, Fair and Regular Elections: one way citizens of the country express their will is by electing
officials to represent them in government. Democracy insists that these elected officials are
chosen and peacefully removed from office in a free and fair manner. Intimidation, corruption
and threats to citizens during or before an election are against the principles of democracy. In a
democracy, elections are held regularly with fixed time interval. Participation in elections should
not be based on a citizen's wealth. For free and fair elections to occur, most adult citizens should
have the right to stand for government office. Additionally, obstacles should not exist which
make it difficult for people to vote.

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In addition, the electorate’s votes should be final, meaning that the election results should be
enforced effectively, which implies that they must be accepted as legitimate. Accepting the
results of elections is also one value of democracy. In democratic elections, there are winners
and losers. Occasionally, even in a democracy, the losers in an election believe so strongly that
their party or candidate is the best one that they refuse to accept the results of the election. The
consequences of not accepting election may results in violence or less confidence of voters if
they think that their will is being ignored. Assuming an election has been judged “free and
fair,” ignoring election results is against democratic principles. Democratic societies
emphasize the principle that all people are equal. Equality means that all individuals are
valued equally, have equal opportunities, and may not be discriminated because of their
religion, ethnic group, or gender, etc backgrounds. In a democracy, individuals and groups
still maintain their right to have different cultures, personalities, languages, and beliefs. All
are equal before the law and are entitled to equal protection of the law without
discrimination.

 What are the Principles of democratic election?

Democratic elections are free when citizens have the right to choose from several candidates
or parties that can run for the election without any restriction. They must also be free to
decide whether they want to use their right to vote or to abstain from doing so, if they prefer.

Democratic elections are equitable when each citizen who can use his/her right to vote has at
his/her disposal a vote and when neither his/her origin nor his/her sex, language, income or
possessions, job or social stratus/class, training, religion or political convictions have an
influence of whatever kind on the assessment of the value of his/her vote.

In democratic elections, there must be no way of knowing for which political party or for
which particular candidate a citizen has voted. They are then secrete, when each citizen can
put his ballot in an envelope, without having been either watched over or influenced, in the
secrecy of the polling booth, and when he/she is also able, in the same way, to put his/her
envelope inside the ballot box afterwards.

Democratic elections are, therefore, public and transparent, i.e. on the one hand, that each
citizen has the right to attend the counting of the votes when the ballot box is opened; on the
other hand, that it is possible to completely follow the whole process of the passage of the
constituents’ votes: starting from the ballots inserted into the ballot box till the final counting
undertaken to establish the calculation that will eventually share out.

In addition to the requirements mentioned above, it is also important to institute elections on

regular basis. Everybody, in that case, has the possibility to know the date of the coming
elections, and to get ready for that ahead of time. It is a way to make sure that the current
government is defined within a time frame and that its people have the right to remove it

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from office. The electorate should represent the whole population, which is to mean that apart
from the underage population, no group should be excluded.

Regarding election process, there are in fact two separate systems: the absolute majority votes
and the proportional ones. Both have crucial importance, given the fact that they influence not
only the political structure but also the formation process of the political will. To settle the
choice on which polling system to adopt, one has to take into account not only the political
traditions and historical situations but also social conditions, because those, eventually, may
authorize solely one of the two possibilities.

Several parameters may be subject to the variations in the enforcement of either the absolute
majority election system or the proportional one: the internal regulations of the party, the
relations between the parties and between the government and the Parliament. An election
loses its primary function if it is manipulated through the choice of a polling system; it will
then have negative impact on the so-called “elected” organs which will then lose their
legitimacy.

In the absolute majority system, the polling area is divided into as many constituencies as
necessary, depending on the number of seats to be assigned (at the Parliament, for example).
Those candidates or lists of candidates that can gather the majority of votes from their
constituents will be assigned the seats to be filled. In the proportional system, the Parliament
seats are assigned according to the percentage obtained by the political parties over the total
number of votes from the whole constituency. The assignment of seats (at the Parliament, for
example) thus reflects, much more than what happens in the absolute majority system, the
effective choice of the population. The candidates are elected through the lists in their
constituency.

Most importantly, elections are usually coordinated and carried out by an electoral commissions
or boards. These commissions shall be independent and neutral of any political loyalty or
affiliation for undertaking the election properly and in a democratic manner. In addition to an
independent and neutral electoral board, a democratic election also requires an independent
judiciary organ. Those individuals or parties who disagree with the final decision of the electoral
commission submit their complaints to courts for final decision.

An electoral process of a given state is not only about the simple translation of votes in to seats
but also must addresses, at least the following issue:

The number of people and the constituency a candidate represents: here, representation takes
three forms: geographical representation- where each part of the country is adequately reflected
in national political organization; descriptive representation – where the national government
represents the population in a way that all sectors of the people (the poor, men and women,
different religions and cultures, etc) have equal voice in government; and functional

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representation – a system whereby no significant parts of the population are disenfranchised but
the system takes into account the preferences of most people.

The number of representatives that a constituency would have, and

The electoral system

Economic Freedom: people in a democracy must have some form of economic freedom. This
means that the government allows some private ownership of property and businesses, and that
the people are allowed to choose their own work and labor unions. The role the government
should play in the economy is open to debate, but it is generally accepted that free markets
should exist in a democracy and the state should not totally control the economy. Some argue
that the state should play a stronger role in countries where great inequality of wealth exists due
to past discrimination or other unfair practices.

Control of the abuse of Power: democratic societies try to prevent any elected official or group of
people from misusing or abusing their power. One of the most common abuses of power is
corruption. Corruption occurs when government officials use public funds for their own benefit
or exercise power in an illegal manner. Various methods have been used in different countries to
protect against these abuses. Frequently the government is structured to limit the powers of the
branches of government: to have independent courts and agencies with power to act against any
illegal action by an elected official or branch of government; to allow for citizen participation
and elections; and to check for police abuse of power.

Human Rights: all democracies strive to respect and protect the human rights of citizens. Human
rights mean those values that reflect respect for human life and human dignity. Democracy
emphasizes the value of every human being. Examples of human rights include the right to life,
liberty, and security of a person among others.

Multi-Party System: in order to have a multi-party system, more than one political party must
participate in elections and play a role in government. A multi-party system allows
opposition to the party which wins the election. A multi-party system provides voters with a
choice of candidates, parties, and policies to vote for. A multi-party system, thus, provides
voters with a choice of candidates, parties and policies to vote for. However, when a country
only has one party, the result has been a dictatorship.

The Rule of Law: in a democracy no one is above the law, not even a king or an elected
President. This is called the rule of law. It means that everyone must obey the law and be held
accountable if they violate it. Democracy also insists that the law be equally, fairly and
consistently enforced.

Actors in Democratization Process

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Modern democracy is emphasizing political parties, organized interest groups and an
independent media as indispensable factors for its operation, among others. The fact behind is
that representative system arranges the mobilization of political participation by relaying upon
the members of politically active groups who can promote popular confidence either for the sake
of demonstrating their faith or to justify the very legitimacy of their leadership and authority.
Previously, we have said that democracy is a process. Building up of democracy is not an
overnight program. It needs not only time but the involvement of different actors to build
democracy and democratic culture. Some these will be seen below.

Political Parties

In a political regime characterized by representative democracy, political parties are vectors of

democracy. They are essential to the functioning and durability of democracy since they are
not only the instruments through which power is attained by means of free, fair and transparent
elections but also the setting for working out practical ideas and proposals which may
constitute alternative programs to the government. They also constitute the means through
which individuals may influence public affairs, express their discontent or support
governmental action.

Open competition between political parties in the framework of elections is one of the
indispensable characteristics of representative democracies. Open competitions between parties
contend for the management of a country's affairs is a socially and politically divisive fac tor
and the stakes are generally high for those involved in this competition. It is, therefore,
important and this is one of the conditions for democracy's survival. Political parties so they
perform as effective actors of democratization and good governance trusted by voters
representative and responsive to public needs and concerns equipped to support government
and a constructive opposition thus playing a role in ensuring transparency and accountability of
government.

Parties are operating usually within a given system. Party systems refer to the number of parties
and pattern of relationships among the parties with in a nation. Taking in to account the number
of dominant or existing political parties within state, party systems is classified in to four major
categories. The type of electoral system that is used in a particular country can also have an
important influence on the number of dominant political parties within the country. Proportional
representation is said to foster a multiparty system because it assures that even parties that poll a
relatively small vote will win some seats in the legislature. On the other hand, in the first-past-
post system, which the winner takes all, may encourage the development of two party systems
since it penalizes parties that may poll a substantial number of votes but do not get the plurality
that is necessary to elect a legislator with in a specific constituency. These systems will be
briefed below.

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One Party System: most of the time this party system is ideological in its outlook and
authoritarian in its structure. In this system, other parties are not usually allowed to exercise
either de jure or de facto functions. As such, the party and its ideology are the main determinants
of governmental policy, style, and the very existence of the media and interest groups and the
like. In this case, the party requires that important government officials are members of the party
or of satellite groups and expects their behavior to conform to the policies and ideologies of the
government. Example is the Workers Party of Ethiopia (WPE) under Derg regime, the Chinese
Communist Party, etc.

Dominant party System: here many parties may exist though they are continuously dominated
by a single party. The dominant party could be the result of a coalition of parties (like the
EPRDF of Ethiopia or ANC of S. Africa) or an organization of a single party (like the Indian
National Congress). Here oppositions forces could be easily manipulated because of the ruling
party’s politics of patronage and party sponsored surrogate forces.

Two Party Systems: are characterized by a regular alternation in office between two major
dominant parties. In two party systems, although minor parties exist, two major parties dominate
government. It is argued that the system provides the people with a choice of policies and leaders
while at the same time guaranteeing governmental stability. The devices of the electoral
arrangement in such a system assure a majority for one party or the other, thus enabling that one
will have the power to carry out its election promises.

The origins of many one-party systems are obvious, but the question often arises as to why some
modern countries function as a two-party system when these societies are so complex and that it
should be impossible for two parties to aggregate all the prevailing interests present and still
stand for anything. Two party systems are common in the political system of Britain, which is
mostly dominated by the conservative and labor party. United States of America as a country
dominated by the Democratic and Republican parties is also another good example of the two
party systems.

Multi Party Systems: are systems in which we have at least three or more major parties. In
multiparty system, one party rarely wins enough seats in the legislature to form government.
Consequently, several parties combine forces to obtain a majority and form a coalition
government to direct the nation’s affairs. As you might expect, when groups with different
ideologies attempt to share power with different ideologies, coalitions often break down when
disputes or disagreements arise requiring new elections. In such countries, voters have a wide
range of choices on election days. The parties in multiparty system often represent widely
different ideologies or basic believes about government.

Non-Governmental Organizations

Like political parties, NGOs are valuable vectors of democracy. They differ from political
parties only in their final goal, but they all contribute to consciousness raising, defense of the

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legitimate interests of groups of individuals and the protection of individual and collective
rights and freedoms. The efficacy of the work of civil society depends on the extent to which
such associations are autonomous or institutionalized. When they have relatively formal links to
the State or political parties, they lose some of their autonomy and thus their ability to intervene
in all freedom in the management and conduct of public affairs and in the working of institutions
according to arrangements deriving from their governing principle of special interests. NGOs,
while being associations, have more pronounced concerns in the area of the protection of
human rights and humanitarian law. Such concerns urge them to intervene in the political field
even if they claim to have nothing to do with politics. It is nevertheless true that the growth of
professional associations and national NGOs is making a strong contribution to the consolidation
of civil society in these countries.

Interest Groups

Interest groups, as associations on the basis of the free will of individuals, play a prominent role
in the process of democratization. Here, we will deal with the nature of interest groups, their
difference with political parties, various types of interest groups and methods they employ to
influence government.

Consistent with the freedom of association granted to citizens in democracies, democratic states
are characterized by the emergence and operation of several kinds of interest groups. Interest
groups are organizations or groups of people, which are autonomous from government or
political parties with the objective of influencing government. In democracies we find several
interest groups who are attempting to promote and influence the policies of government. In fact
interest groups are regarded as essential transmission belts between people and government.
They play an important role in helping people interact with government, which is often remote
and difficult for the individual to influence. Interest groups, bridge the gap between the citizen
and government. Through interest groups, citizens communicate their wants on policy goals to
government leaders.

Public Opinion

Public opinion is of a crucial importance for democracy. Are you wondering why? Public
opinion is made up with citizens or specific groups that reflect on their community and
express their criticisms, their proposals or their agreement to influence the construction of
political will. It is not possible to talk about only one, but of several public opinions because
in a plural society, there are always several stands.

Public opinion is then a tool to control the politicians that lead the country. On the one hand,
this is important for the opposition as the latter is only potentially active in front of the
government through this public opinion. Indeed, what important changes would an opposition
bring if it was only able to express criticisms in closed rooms? It is when the opposition
represents its stands and opinions, finds itself obliged to react, otherwise it is running the risks

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of disaffection or destitution, from its citizens. Moreover, public opinion serves the whole
population in its effort to display criticisms and its incitements to well defined actions.

Each citizen has the right to gather information and to contribute somehow to the expression
of public opinion when he/she organizes, for instance, a meeting in order to exchange
information. In this context, political and social human rights play an important role: the
freedom of opinion, as well as freedom to hold meetings and to set up associations which allow
citizens to participate in the expression of public opinion, without having to put up with any
pressure. Public opinion then constitutes a controlling tool, which is very important in a
democracy.

Mass Media

Finally, we will discuss the roles of the mass media in the process of democratization. Freedom
of the media is essential in a democracy. The mass media refers the institution and to the
methods of communication, which can reach large number of people at the same time. It includes
newspapers, television, radio, books, posters, magazines, and cinema etc. Media plays a role in
the political training of citizens and democratic culture by informing them of the scope of
public policies, the management and conduct of affairs by those responsible at both the State
and grass-roots level, by providing and offering the members of the community the means of
communicating with each other. But if the media is to perform those functions, it must be free
and independent; it must have sufficient material and human resources to deal with all the
important problems of society. The importance of the mass media in a country is not dependent
on the number of newspapers or private radio and television stations but on the quality of the
information provided to the public.

The concept of Human rights

The word “rights” is ambiguous, because it can be used in more than one sense and can have
many meanings. This condition poses a problem in defining “rights” and in securing their
respect. In order to understand the meaning of “rights”, it is better to classify them in the
following categories

Legal rights -are those rights which are recognized by the actual law of actual states. So they are
necessarily enforceable, that is, it imposes a legal duty on others not to infringe up on it. Legal
rights are also called “positive rights.” one can find out what his /her legal rights are by referring
the laws that have been enacted or by asking judges or lawyers. The legal right of citizens can be
secured by positive law through various ways. For example it may provide legal rights as:

Privileges: by not imposing a duty upon an individual or remaining silent in the process of
exercising his/her rights

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Claims: by placing on another individual under a duty to provide or refrain from interfering in
the exercise of his/her rights.

Powers: by putting an individual in a position to bring a change in the legal relations that exist
between him/her and other people.

Immunity: by protecting a person from a duty or punishment or from the exercise of other's
power up on him/her.

Moral rights: these include claims (ethical or legal) about the way people ought to treat and deal
with one another. Most of the time moral rights are abstract claims which are related to religion
and percepts. A moral right is not necessarily enforced (some are enforced but some are not). As
legal rights there is no authority to consult on our moral rights. Thus there may be disagreement
among individuals on the possession of moral rights. One may think that he / she has a moral
right to something and someone else may think that you have not. In this case, there is nothing
you can do to prove whether you have a moral right or not, except to justify your claim or
criticism. But moral rights like legal rights can be provided as duties, privileges, claims, and
powers.

Natural rights: these rights are considered as a certain type of moral rights. But they are not a
kind of moral rights that belongs to only one person or to a certain group (class) of people,
rather, they are moral rights which every human being, everywhere, at all times entitled by the
very fact of his/her nature, that is, being human and rational. Natural rights are rights thought to
exist by nature before the existence of government or positive (legal) rights and positive laws. So
they would continue to exist without government and positive laws as they are secured by natural
law- a law which is higher than conventional laws. During the medieval period this law was
identified with the rules laid down by God for all his creatures as revealed them in the bible or
the working of reason. Natural rights are negative rights because their existence is not a matter of
laws.

Property rights: are positive rights which are to be established and protected by the
government.

POSITION OF HUMAN RIGHTS IN THE REALM OF RIGHTS

Human rights are right which belong to all of us, simply because we are human beings. They are
basic and fundamental rights which all individuals deserve as human beings. Human rights are a
twentieth century name for what has been traditionally known as “natural rights.” Thus, they
differ from other kinds of moral rights by their universality, that is, they are rights of all people,
at all times and in all situations. As some writers argue, this universal character of human rights
(natural rights) is a large part of our problems in seeking to justify them. They noted that, even
though, they belonged to the category of moral rights they are not easily justified as moral rights
that belongs to one person only or a group (class) of people. As human right is something that

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pertains to all persons at all times, they cannot be justified as rights that are earned or acquired
by the enactment of special roles: human rights are not bought , nor are they created by any other
contractual undertaking or they are not given by government and are not inherited . They belong
to human beings simply because of our humanity.

When we say human rights are moral rights, it is not to deny that they are positive (legal) rights
for many people. Where human rights are upheld and confirmed by a law that can be enforced by
the courts and respected by the government, they can be positive legal rights. In general, human
rights are based on equality because they are based on our common nature - common needs and
capabilities, common sensitivity, fear and vulnerability - so they are applied equally in any space
and time without distinction of color, sex, language, citizenship, religion, etc … they are
universal - held by all human beings, they are inalienable: cannot be taken away from human
beings because they are closely associated with human nature. They are natural- they do not
emanate from government will or individual conventions rather possessed by human being by
their very nature.

Historical and Philosophical Base of Human Rights

The history of human rights is long. The concern for human rights can be traced back to ancient
Greek city states and Rome. For Example, citizens of certain Greek cities enjoyed rights which
are similar to the ones recognized in the modern time such as freedom of speech and equality
before the law. During the Hellenistic period -a period which followed the disintegration of the
Greek city states, the stoic philosophers formulated the doctrine of natural rights as something
which belonged to all men at all times by the simple fact of being human and rational. They
elaborated the concept of natural rights together with the concept of natural law-universal moral
law which transcends the law of state (positive law). The political theory of medieval
Christendom put greater stress on natural law in relation with natural rights. Natural law was
understood as the law of God and it teaches the “duties of man” as distinct from the “rights of
man”.

It was in the modern time (after the Renaissance) that natural law was restated in secular, modern
individualist terms by emphasizing natural law as rights rather than as duties of the medieval
period. In this regard, theorists like Grotius, Pufendorf and the contribution of many writings of
social contract theorists was eminent. For example, John Locke in his book “second Treaties of
Government” which was published in 1688 presented the first fully developed theory of natural
rights. Locke as one of the social contract theorists argues that in the state of nature (before the
coming in to existence of government and positive law), individuals have equal natural right,
prominent among them were thought to be the right to life, liberty and property. In the absence
of government, however, these rights are of little value. It is impossible to protect them simply
by individual action as there was dispute over rights. Thus, people form societies, societies
establish government as a device to promote and protect these natural rights. According to
Locke, Government is established based on a social contract (agreement) between rulers and

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ruled. By this, citizens are obliged to obey only if the government protects their human (natural)
rights, which are morally prior to and above the claims and interests of the government.
Government is legitimate to the extent that it systematically protects and furthers the enjoyment
of the human rights of citizens.

The idea of natural rights of this kind had played a key role in the 17 th and 18th century struggle
against absolutism-which is based on the claim of high birth and traditional privilege rather
than on universal natural equality of human beings. For example, John Locke theory of
government had serious impact on Britain’s Glorious Revolution and the subsequent “Bill of
Rights” which is passed by a parliament in 1689. The Bill of Rights emphasized the importance
of individual freedom in government, and religion. It also prohibits the king from suspending
laws and levy taxes that are not sanctioned by parliament. The Bill proclaimed the subordination
of the king to the law and the right of the people to change the sovereign (king) they no longer
trusted. In this regard John Locke’s theory contributed by giving all these decisions a
philosophical justification.

The impact of Lock’s reasoning and the example of the English Bill of rights was not confined to
Britain only, but it had a great influence throughout the civilized world. In Virginia in June 1776,
a Bill of rights was adopted following the model of the English Bill of rights by a representative
convention. The Virginia Bill of rights proclaimed that “all men are by nature equally free and
Independent and have certain inherent rights, of which, when they enter into a state of society,
they cannot, by any compact, deprive of divest their posterity: namely, the enjoyment of life and
liberty, with the means of acquiring and possessing property and pursuing and obtaining
happiness.”

The Virginia Bill of rights recognized the right to pursuit of happiness, in addition to the right to
life and liberty which has been named by Locke as natural rights. The thirteen American states in
the Declaration of Independence of 1776 affirmed in the same word that “we hold these truths to
be self evident: that all men are created equal; that they are endowed by their creator with
certain inalienable rights, that among them are life, liberty and pursuit of happiness.” These
rights were later incorporated into the USA constitution of 1789 in greater detail. The
constitution specified freedom of speech and the press, the right of the people to be secure in
their persons, houses, papers and effects against unreasonable searches and seizure and to the
free exercise of religion.

The 1789 French Declaration of the rights of man and citizen which was issued by the French
Constituent Assembly was modeled along the English and American Bill of rights. The
Declaration include the principle that “Men are born free and remain free and equal in rights”,
and also asserts that “the end (purpose) of all political association is the preservation of the
natural and imprescriptibly rights of man and these rights are liberty, property, as “The power of
doing whatever that does not harm another. The exercise of these natural rights every man has
any after limits than those, which are necessary to secure to every other man to the free exercise

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of the same rights”. The French declaration also allows the right to free speech, free press,
religions freedom, freedom from arbitrary arrest and inviolable and sacred right of property.

Generally, in this period the concept of human (natural) right was associated which claim
political authority and liberty based on natural human equality and inalienable natural rights.

Human rights of this time focused on civil and political rights, which had the purpose of
protecting an individual from unwarranted interference of political and social groups. But in
practice, these rights have been limited to propertied males. Women along with servant laborers
of either sex were not recognized as right holders. But, once the notion of equal and inalienable
rights by all were advanced, it became difficult for those elites who denied human rights to
justify their practice. Thus, those who denied equal and inalienable rights begun struggle in order
to expand the reorganized subject’s of human rights.

For example, the claims of the working class for fair wages, the right to organize themselves and
for safe and humane working conditions have led to violent political conflict. The struggle of the
time also not only focused on alleviating political inequality but also on economic and social
inequality. The socialist thinkers like St. Simon and Fourier in particular argue that the economic
inequality of the industrial world should be removed, especially they advocate legislation to be
passed to improve working conditions and to guarantee security by ruthless taxation of wealth
for the provision of social services, and freedom for workers to organize in their unions for the
defense of their individual and collective rights.

Later, the demand of the workers was strengthened by the philosophy of the Marxist theory of
the “Dictatorship of the proletariat” which asserts that “There can be no true freedom without the
remolding of the economic structure”. Based on this doctrine that is the recognition that to live
well and freely man must have at least the means requisite for living and which was made
increasingly practicable by the advance in technology and industrialization in making the means
of livelihood potentially accessible to all man. Moreover, due to the 1917 Bolshevik revolution
of Russia a new set of fundamental human rights were developed, that is, Economic and social
rights.

The Intellectual thought and political struggle to secure and expand human rights conception did
not stop here. Due to the emergence of Independent states of Asia, Africa and Latin America
from the yoke of colonialism-a system which is based on exploitation and subjugation of the
peoples of these states gave rise to another form of human rights which are termed as solidarity
rights /people’s right.

The emergency of these rights is based on the idea that the current distribution of wealth,
opportunity and resources is unjust and unequal and this condition is easily grasped in countries
of the Third world (developing countries), who are the subjects of continuous exploitation of the
international division of labor which stand in favors of the most developed western countries,
rather than to those people’s and states in a disadvantage context. Thus, those states where their

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people are in a situation of poverty forward a claim on the world community based on the
universal character of human rights ,that is , human rights are not the preserve of one part of the
world, but rather are the possessions of all people regardless of color, class, status of national
origins.

Scope and Contents of Human Rights

In the development of human rights, the contribution of different social revolutions that occur in
the world, the teachings of various philosophers and the recent ideological competition is
eminent. Accordingly, human rights developed from time to time in terms of scope and content.
K. Vasak, a French jurist and former Director of the Division of human Rights and peace of
UNESCO Originally classified human rights in to three categories.

The first category was called the “First Generation Rights” which derived from the seventeenth
and eighteenth century reformist theory and closely associated with the English, French and
American Revolutions. This category include those rights which are called civil and political
rights also referred as “ Negative Rights”- which require governments to abstain from arbitrary
intervention in the enjoyment of these rights. Content wise, civil and Political rights include:

The freedom and inviolability of a person’s rights

Freedom from racial and equivalent forms of discrimination

Freedom of Expression

Protection from unlawful acts by the state such as imprisonment, forced labor, freedom from
torture and from inhuman or cruel or degrading treatment or punishment.

The right to life, fair trial etc….

The right to vote and to stand for office at the various levels of government

Freedom of assembly and Association

Freedom of Information

The second category is called “Second Generation of Rights” .The origin of these rights is the
socialist movement of the nineteenth century Europe (especially France). Later developed and
reemphasized by various welfare movements and Revolutionary struggles especially, the 1917
Bolshevik revolution. The second generation of rights corresponds to rights which are called
Economic, social and cultural rights, also termed as “positive rights”- require positive state
intervention in fulfilling the quest for these rights. This category of rights specifically includes:

Social and economic rights:

The right to work and protection against unemployment

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Equality of opportunity (in education, labor market etc…)

The right to adequate standard of education, health services

The right to adequate standard of living (includes basic needs- food, shelter and clothing)

Cultural Rights:

The right to express, develop and promote one’s own culture

The right to speak, to write and develop one’s language

The right to preserve one’s history and cultural heritage.

The third category is known as “Third Generations of Rights” which emerged in the last half of
twentieth century due to the emergence of independent developing countries from colonial rule
and the subsequent quest of these states for New International Economic Order which require
global redistribution of power wealth and other values. These states, moreover, want to make
sure that to use one’s own natural resource for the benefit of its people is a recognized right. This
third generation of rights particularly referred to as Environmental and Developmental rights.
This category of rights includes rights like:

The right to self determination of people (Economic, social, political and cultural)

The right to economic and social Development

The right to participate in the common heritage of mankind

The right to clean environment

The right to peace

The right to humanitarian disaster relief.

Even Though these rights are categorized in to their generation of rights, they basically deal with
the right and freedom of individuals and they are interdependent. For example, the right to life
which is considered as one of the civil right is closely associated with the right to food, clothing
and shelter of social rights. The other thing that should be bear in mind is that not all rights in the
first and second generation of rights are completely fit the “Positive” or” Negative” rights
category. There are some civil and political rights that require government intervention to be
actively exercised while; some economic and social rights require the mere abstention of
government in their enjoyment. But generally, we can conclude that government has some
obligation in the exercise of human rights:

The obligation to respect:- abstention of government from interfering or constraining the exercise
of such rights and freedoms

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The obligation to protect: the government must take responsibility to prevent and control the
violation of individual freedom and right by other third party.

The obligation to fulfill- this requires states to take further positive measures to ensure the
effective realization of such rights.

Instruments/Protection of Human Rights

Human rights have been considered as universal rights that all human beings entitled to posses
and exercise naturally. But, historically and in contemporary practice, one can easily encounter
that these rights have been denied and manipulated by different individuals (absolute rulers),
societies and governments. Thus, many great political struggles have been staged in order to
either expand the recognized subjects of human rights or to end the systematic denial of human
rights for one and all times. As a result of this and as almost all societies possess notions of
justice; fairness and dignity, human rights began to assume a prominent position in the world.
But, still both the denial of these rights and the struggle to secure these rights is continued.

Human rights can be protected from abuse and arbitrary use of power by the government on the
rights of citizens (vertical protection) or from the violation of a citizen’s right by fellow citizens
(Horizontal protection).

But the controversy over the meaning of the term “right” in general and human rights in
particular, the difficulty of reconciling “Individual rights” with “collective’’ rights and the
philosophical complexities associated with different categories of rights posed a problem in the
protection of human rights. However, after the emergence of modern states different mechanisms
have been developed at national and international levels to promote and protect human rights.

In ancient time, the Greek city-states formulated the principle of “Natural Law” which is closely
related with Natural rights. The Natural law (also associated with once moral atmosphere) view
is that there are certain rights that exist as a result of a higher law than positive / manmade law
and such a higher law had universal and absolute set of principles to govern all human beings in
time and space. By this, the Greek city-states had granted some rights to their own citizens and
citizens of other city-states in each other territories.

The Natural right approach of the seventeenth century, which is primarily associated with John
Locke, provides a powerful method of restraining arbitrary power by making recourse to a
superior type of law. In the 19th century, the growth of positivism as a theory was encountered. It
rejects natural rights as nonsense and natural law as imaginary law and only advocates those
rights that could emanate from the constitutional structure of a given system. As a theory, it also
emphasized on the authority of a state and only recognized states as the “subjects” of
international law in contrast with “Individuals” as the objects of International law. This made
virtually all matters that are classified as human rights issues to be a domestic matter which fall
under national jurisdiction, that is, how states treated their own nationals is the prerogative of

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national governments and other states and the International community are under the legal
obligation not to intervene in such matters.

This made possible the genocidal massacres of Russians against Jewish and the Turkish
slaughter of Armenians to be met only with polite statements of disapproval from the
International community before the Second World War (1939-1944). During the second world
war, when the Holocaust-where German Nazi systematically attempt to eliminate European
Jewish, which resulted in the torture and killing of six million Jews- was committed the
international community lacked the legal and political language to condemn them because the
German government killing of its own nationals was considered as simply exercising of its own
sovereign rights. These occurrences caused the establishment of international instruments to
look after human rights.

Human Right Protection in the United Nations System (International Instruments)

The shocking atrocities committed by Nazis against humanity brought human rights into the
mainstream of international relation that as business of the International community. As a result
an International organization which was created after the Second World War, that is the United
Nations, gave primary concern in its charter for the promotion and protection of human rights
unlike its predecessor, the League of Nations (established in1919) which fails to mention in its
covenant human rights as a legitimate subject for international action. The united Nations (UN)
have a number of provisions on human rights in its charter. According to Article 1, paragraph 3
of the charter the primary purpose of the organization is the encouragement of international co-
operation for the promotion and respect for human rights and fundamental freedoms for all
without distinction as to race, sex, language or religion.

In order to realize this, the General Assembly of the UN was given the power to initiate studies
and make recommendation to governments regarding human rights (Art 13(1) while article 55
provides that the UN shall promote universal respect for and observance of human rights and
fundamental freedoms for all. Furthermore, article 56 states that all members pledge themselves
to take joint and separate action in cooperation with the organization for the achievement of the
purpose set forth in article 55.

The mandate system of the League of Nations was replaced by other system, having the basic
objective of encouragement of respect for human rights (Art. 76). In this regard, article 73 of the
charter recognized the principle that the interest of the inhabitants of these non-self governing
territories was paramount and accepted as a sacred trust the obligation to promote the well- being
of the inhabitants.

The task to make recommendations for the purpose of promoting respect for and observance of
human rights and fundamental freedoms for all was given to one of the organs of the UN , that is
Economic and social council (ECOSOC) (Article 62). This general authority of ECOSOC was
supplemented by a specific requirement that it should organize a commission for the promotion

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of human rights (Article 68). Even though, the Charter contain domestic jurisdiction provision in
article 2 (7) that prohibit the UN to intervene in matters which are essentially with in the
domestic jurisdiction of any states’ human rights were no longer recognized as being solely with
in the domestic jurisdiction states.

The UN began to work with a commission on human Rights in 1946. The commission use
allotted to perform certain tasks. One of these tasks is to developed proposals and to submit to
the General Assembly recommendations and reports regarding:

An International Bill of Rights

International Declarations or conventions relating to civil liberties, the status of women, freedom
of information, and similar matters

The protection of minorities

The prevention of discrimination on grounds of race, sex, language or religion

Any of the matter concerning human rights.

The commission originally consists of 43 representatives of member states of the UN selected by

ECOSOC on the basis of equitable geographical distribution but the number of member states
increased to 53 in 1990. Following the creation of the commission on Human Right large
numbers of studies and reports of various kinds have appeared. Moreover, a range of declarations
and treaties has emerged coupled with the establishment of a variety of advisory services and
implementation and enforcement mechanisms. In order to make sure that all human beings
possess and enjoy human rights, it adopts various instruments for the enforcement and realization
of human right principles.

The Universal Declaration of Human Rights (UDHR’s)

It was adopted by the General Assembly of the United Nations on 10, December 1948. No
member of the UN opposed the adoption of the Universal Declaration of Human Rights. Eight
states-soviet union and five of its allies (Byelorussia, Czechoslovakia, Poland, Ukraine and
Yugoslavia), Saudi Arabia and south Africa abstained from voting. The UDHR, in its preamble,
states the basis on which it is adopted “recognition of the inherent dignity and of the equal and
inalienable rights of all members of the human family is the foundation of freedom, justice and
peace in the world”. It was adopted by the UN General Assembly as a resolution which has a
legal status of providing recommendation; that means it is not a legally binding document. It was
put forward as a provisional document, a statement of ideals. This was stated clearly in the
declaration that human rights “are a common standard of achievement for all people and
nations”. In its thirty articles, the universal declaration covers a wide range of rights, which are
considered as:

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Civil and political rights like:

The right to life, liberty and security of persons (article3)

Prohibition of slavery

Prohibition of torture

Prohibition of arbitrary arrest, detention or exile

The right to fair trial

The right to freedom of movement

The right to property

The right to freedom of thought and conscience and religion

The right to freedom of opinion and expression

The right to freedom of assembly and Association

The right to participate in the government of one’s country.

Social and economic Rights include:

The right to work

The right to adequate standard of living, including food, clothing housing and medical care,

The right to education.

Cultural rights include:

The right to participate in the cultural life of one’s community, to share in scientific advancement

The right to the protection of the moral and material interests from one’s scientific literary or
artistic production (Article 27).

Even though the declaration is not a legal instrument, it has a marked influence up on the
constitutions of many countries and subsequent human rights treaties and resolutions. Here, it
should also be noted that, at the conclusion of the Teheran international conference on human
rights in 1967, it was stressed that the declaration constituted “an obligation for members of the
international community” to respect the standards set out in the universal declaration. The
declaration has also been referred in many cases and become important in the development of an
international human rights law (binding conventions).

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By now, a number of important human rights which are referred as “core rights” in the universal
declaration have acquired the status of international customary law and an international
conventions dealing with these rights were adopted. This includes the convention on the
prevention and punishment of the crime of genocide which is signed in 1948.

The international convention on the elimination of all forms of racial discrimination was signed
in 1965 and entered in to force in 1969. The importance of the universal declaration has been
repeatedly confirmed by different bodies of the UN and international conferences. In the second
world conference on Human rights which held in Vienna in 1993 named the universal
declaration as the source of inspiration and as the basis for the United Nation in making advances
in standard setting as contained in the existing international human right instruments.

The obligation of the United Nations regarding human rights are obvious (article 55 of UN
charter) - to promote “respect for and observance of human rights and fundamental freedoms”. In
this regard, the universal declaration was important in naming what are these “human rights and
fundamental freedoms” are? But, the question as what the UN should have done to promote
respect for and observance of them remained an unanswered. In other words the question is how
could the declaration become subsequently legally binding? In order to make it binding by way
of interpretation of the UN charter on human rights were very general and vague.

Also there is no enforcement procedures laid down either in the charter or in the declaration
when the commission on Human right was in the process of proposing an “International Bill of
Rights”. There has been a hot debate between representative member states on the issue that
whether the proposed international Bill should take the form of a binding or judicial nature or as
a manifesto of rights. But the commission later settled the problem by reaching on a
compromise, that is, rather than producing one document it will produce two in which one will
be a manifesto or a declaration and later it will produce something more legally binding than a
mere declaration and this second instrument was decided to be called a covenant.

By this, it produced the UDHR’s as a declaration (manifesto). After the adoption of the
declaration, the UN General Assembly instructed the Commission on Human Rights in 1948 to
complete the task of producing a draft convention on human rights and draft measures of
implementation. The debate aroused due to the division of member states of the commission
based on their ideological orientation that advocate and recognized certain categories of human
rights and only wants to formulate those rights to be legally binding. But the proceedings to
transform the “declaration” to the “covenant” or nominal rights into positive rights took almost
two decades. In addition to this, rather than producing one covenant, it became two - one dealing
with civil and political rights the other dealing with economic, social and cultural rights.

The official justification given to the division of the covenants in to two legal instruments was
the difference in kind between civil and political rights (traditional rights of man) and economic
and social rights and the requirement of different mechanisms for their implementation.

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Moreover, the ideological and political divisions of the post second world war period contribute
its part for the division. Both the International covenant on civil and political rights and
International covenant on Economic social and cultural rights were adopted by the General
Assembly of the United Nations in 1966 and entered into force in 1976. The universal
declaration of Human Rights and the two covenants together are called International Bill of
Rights.

The International Covenant on Civil and Political Rights

This covenant basically deals with the promotion and protection of civil and political rights. The
covenant obliges every state to respect and ensure to all individuals within their territories and
jurisdiction the enjoyment of the rights recognized in the covenant without distinction of any
kind. The covenant is implemented by means of a reporting system whereby state parties to the
covenant submit reports on any national measures adopted to give effect to the rights recognized
in the covenant and the progress they made in the enjoyment of these rights, to a supervisory
committee of independent experts called Human Rights Committee. The primary function of the
committee is to review the periodic reports submitted by states. After considering each states
report, the committee will issue a concluding comment by referring as “positive aspects”,
“principal subjects of concern” of the report and finally suggestion a recommendation for
improvement. The power of the Human Right Committee were extended by an optional protocol,
which allows the committee to receive and consider individual communications alleging
violations of the covenant by a state party to the first optional protocol. But the individual must
have exhausted all available domestic remedies before resorting to international mechanism for
solution. In this regard, also the optional protocol does not provide an enforcement mechanism if
a particular state acted against the final view of the committee.

International Covenant on Economic, Social and Cultural Rights

In the observance of human rights the observance of economic, social and cultural rights has
received less attention than the observance of civil and political rights. This is partly due to the
views of some countries to consider these rights as policy aims or aspirations than legally
enforceable human rights. State parties to this covenant are expected to take measures to the
maximum of its available resources “with a view of achieving progressively the full realization
of the rights recognized in the covenant”.

The covenant did not establish a supervisory committee rather states parties to the covenant
obliged to send periodic reports to ECOSOC but due to the work load of ECOSOC in 1978, a
session working group was setup which in 1985 was replaced by Economic, Social and Cultural
Committee. Unlike the Human Right Committee, the Economic, Social and Cultural Committee
is not autonomous as it is not responsible for states parties but to one of the main organ of UN -
ECOSOC. There also exists no right to complain for states or individuals in case of an alleged
violation of economic, social and cultural rights. But there are proposals to create such rights.

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Here one has to note that these are not the only covenants and declarations that the UN produced
to promote and protect human rights. Through years the UN has adopted a number of documents.
In addition to producing documents and establishing institutions, committees, subordinate
organs, which follow up the implementation of various human right provisions and treaties, its
specialized agencies like the International Labor Organization (ILO) and the United Nations
Educational, Scientific and Cultural Organization (UNESCO) have dealt with the protection and
promotion of human rights in their constitution or in the conventions they sponsored for member
states to adopt.

2) Regional Human Rights supervisory Mechanisms

A. The Council of Europe

It is founded in 1949 with the aim of achieving greater unity between member states for the
purpose of safeguarding and realizing the ideals and principles which are their common heritage
and facilitating their economic and social progress. In 1950 foreign ministries of fifteen
European states signed a “European Covenant for the protection of Human Rights and
Fundamental Freedoms”. The covenant contains a number of provisions for the protection of
civil and political rights. From the beginning, the council of Europe set itself to move on from
the enumeration of human rights to the “Universal and effective recognition” of them. This
resolution of the contraction states was clearly expressed in the preamble of the covenant as “the
government of European countries which are like minded and have a common heritage of
political traditions, ideals, freedoms and the rule of law to take the first step for the collective
enforcement of certain of the rights stated in the universal declaration proclaimed by united
Nations in 1948.”

The importance of European covenant lies not so much on the right it specifies but in the fact
that it contains binding commitments and set up new International legal institutions. The two
innovative institutions of the council are the European Commission for Human Rights and the
European Court of Human Rights. These institutions are open to receive petition from
individuals who believe that their rights as defined in the European covenant are being violated.
But the court shall deal only with cares which come from the countries which recognize the
authority of the court. The convention also provides an interstate complaint- where by every state
party to the convention has the right to lodge the court a complaint of any alleged breach of the
convention by any other state party.

Of the two bodies, the commission is the first to consider any petition or complaint from state or
individuals. It has a filtering system in deciding which application is admissible or not. If cases
are accepted as admissible, they are first referred to governments to reach a friendly settlement.
If this fails, it will refer the case to the European Court of Human Rights. The court can and does
issue binding legal judgments. There is no right of appeal against the decisions of the court. The
decisions of the court are final and binding.

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B. The organization of American states (OAS):

In 1948 the charter of the OAS was adopted together with the American Declaration of the
Rights and Duties of Man as a set of standards in the field of human rights. The Inter American
Commission on Human Rights was created in 1959 and its first statute approved by the OAS
council in 1960. In its statute it had wide powers to promote the study and awareness of human
rights and to give recommendation to member states.

In 1969 the American Convention on Human Right was adopted resulted the creation of the Inter
American Court of Human Rights. The power of the commission was even extended; having the
power to supervise the protection of all those rights enumerated in the charter of the OAS and
those in the American Declaration of the Rights and Duties of Man and the Convention. The
Inter American courts only supervise the provisions of the conversion which only apply to the
states party to the convention.

The convention has a provision that any person or group of persons or any non-governmental
organization legally recognized in one or more of the OAS member states may lodge petitions
with the commission alleging a violation of the convention by state party. The Commission also
can itself take the initiative to deal with a case of a particular person. The Commission also
accepts inter-state complaint but it require prior declaration recognizing the competence of the
commission by the compliant state and the state which the complaint is lodged while the court
decides on disputes brought before it by states parties to the convention or by the commission
relating to changes that a state party has violated the convention.

C. the African Charter on Human and People’s Right

In 1979 in Monrovia (Liberia) Assembly of the Heads of State of Africa agreed to adopt laws of
human rights. In 1981 the African Charter on Human and Peoples’ Right was adopted which
came in to force in 1986. The charter contains a number of rights ranging from the classical civil
and political, economic, social and cultural and various peoples’ right. The charter also mention
the duties of the individual to the state, society and family- which include the duties to avoid
compromising the security of the state and to preserve and strengthening social and national
solidarity and independence.

The charter set up an African Commission on Human and Peoples’ Right which started to
function in 1987. The commission has important educational and promotional responsibilities.
This made it a body to promote rather than to protect human rights. The commission may hear
interstate complaints on violation of the charter. It also deals with communications from other
non- state sources. State parties are obliged to submit reports every two years on the legislative
or other measures taken to implement the charter. There is no provision made for the court but a
draft treaty for such a court was adopted in 1998.

Human Right of Women

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As we have seen before the very term “human rights” indicate both their nature and source, that
is, they are rights that are possessed by all individuals because of the simple fact that they are
born human. Thus, we can conclude from this that human rights are held equally by all human
beings because human beings have them simply because they are human. Thus, human rights are
universal- applied to every single person by virtue of their humanity. In order to promote and
protect them, a number of International human rights instruments have been drafted and ratified.
Moreover, most countries also recognize most of these rights and have incorporated them in their
constitutions, national legislations and laws. If these fundamental and basic rights are belonged
to all human beings irrespective of their differences, one can pose a question that, what is the
necessity of treating women’s human rights separately?

Those who advocate a separate international women human rights instruments argue that even
though the various international and regional human rights instruments and the wide
international documents adopted and ratified include the provision of non-discrimination clause
that recognize human rights as inherent in all human beings and held equally by all, yet they
have been found inadequate to address the subordination of women worldwide. In other word,
international human rights standards are developed on the basis of a typical male-life
experience, which legal order privileges a male perspective and fails to accommodate the
realities, most pressing risks, problems of, or threats to, women’s lives. Thus, human rights
documents make the reference to gender difference without really considering the disadvantage
faced by women in reality. In a world where distribution of power and goods is structured along
gender lines, it will be naïve to think that the mere provision of equality will bring a real change
in women’s status and life in society. Furthermore, all of the international human rights
instruments focus on the dichotomy between the public belonged to men, while the private
sphere-the home and family, is considered to be that of the woman. Thus, international human
instruments by reinforcing the distinction between the two domains and by giving greater
significance to the public sphere, neglect to regulate a particular aspect of the woman’s life. In
other words, they did not consider the fact that in the enjoyment of rights women face constraints
and vulnerabilities which differ from those that affect men and which are of relevance to the
enjoyment of these rights.

These mean that women may be affected by violations of rights in ways that are different from
men. By so doing, the international human right instruments neglect the value of the women and
her function in the private sphere. As a result, many women experience multiple barriers in
gaining access to rights, such as employment, housing, land, food and social security, which
basically contributed to the perpetuation of gender-based inequalities. The way international
instruments defined, interpreted and implemented human rights was in a genderless manner so it
could not eradicate the gender inequality and discrimination.

Thus, the need for women’s participation in all spheres of society- in both the public and private
domains - and the recognition of inequality and discrimination in the private domain led to the
creation of specific standards for the protection of women’s rights. In this regard the UN general

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Assembly in 1967 adopted the declaration on the Elimination of All forms of Discrimination
Against women. Based up on the declaration in 1979 it adopted the Convention on the
Elimination of all forms of Discrimination against Women (CEDAW). CEDAW established
women’s right to non-discrimination on the basis of sex and affirms equality in international law.
It provides that women and men are entitled to the equal enjoyment and exercise of human rights
and fundamental freedoms in civil, political, economic, social and cultural fields. The convention
among other things, oblige the states parties to the convention to undertake “to embody
principles of equality of men and women in their national constitutions or other appropriate
legislations” and to adopt laws or other measures including ‘’sanctions where appropriate,
prohibiting all discrimination against women”. It also require the state parties to take a serious of
measures in the political , social, economic and cultural realm to advance the enjoyment of equal
rights by women in all walks of life. But (CEDAW) initially did not define “discrimination
against women” to specifically cover violence against women.

But in 1993 the UN General Assembly further adopted the Declaration on the Elimination of
Violence against Women (DEVAW), which defines violence against women as encompassing
dowry- related violence, female genital mutilation and other traditional practices harmful to
women, female infanticide and pre-natal sex selection. The committee which was established by
the convention in addition to hearing states reports, it may make general recommendation which
is included in the report.

One thing you have to bear in mind is that CEDAW does not, per se, create new human rights for
women. It rather reiterates, in a specific manner, the rights of women not to be discriminated
against on the basis of sex and to have the necessary national legal, political and administrative
measures in place to be able to fully exercise their human rights.

In addition to drafting and adopting declarations and conventions, various conferences were held
to improve the status of women during the UN decade for women (1976-1985). The UN
sponsored women’s conferences, which took place in Mexico city in 1975, Copenhagen in 1980,
Nairobi in 1985, Beijing in 1995 and New York (Beijing + 5) were convened to evaluate the
status of women and to formulate strategies for women’s advancement. In recent years, the
question of women’s rights has moved further up in the international agenda. The Vienna
declaration and program of action adopted in 1993 first declared that other than the reporting
procedures which is the only available mechanism to monitor states parties to the convention,
new procedures should also be established to strengthen implementation of the commitment to
women’s equality and the human rights of women.

It also emphasized that the human rights of women should be brought in to the mainstream of
UN system wide activity and that women’s rights should be regularly and systematically
addressed throughout the UN bodies and mechanisms. Mainstreaming gender is an
acknowledgement of the different ways in which gender roles and gender relations shape
women’s and men’s access to rights, resources and opportunities, within and between cultures

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and at different stages in their life cycles. Its aim is to achieve the advancement of women
through correcting disparities in different policy sector and ensuring their enjoyment of civil,
cultural, economic, political and social rights. By this the need to incorporate the gender
dimension in to UN human rights activities has also been recognized by other key bodies within
the UN system.

Thus, since 1997 mainstreaming a gender perspective into policies and programmes has become
an objective of the UN system. In light of this , the various human rights treaty bodies special
procedures and the sub-commission on the promotion and protection of Human Rights, as well
as the high commissioner for human rights begun to work to ensure the implementation of
integration and mainstreaming of human rights of women in implementing their specific
mandates. For example, the Human Rights committee adopted a comprehensive new general
comment on gender equality which thoroughly updated its earlier general comment made at
1981. In its general comment No. 28 spells out what the core provision of the covenant on civil
and political Rights (ICCPR) entails and what information states parties are expected to provide
in their reports.

The Human rights committee made very clear that the right to gender equality is not merely a
right to non-discrimination because affirmative action is required to achieve gender equality. In
this regard the states party must not adopt measures of protection, but also positive measures
must be taken in all areas so as to achieve the effective and equal empowerment of women. It
also revisited the various provisions of the covenant so as to be gender sensitive. For instance:

Bearing in mind that women are particularly vulnerable in times of internal or international
armed conflicts, states parties must take special measures to protect women from rape, abduction
and other forms of gender-based violence (paragraph 8). The committee’s draft general comment
No. 29 on states of emergency specifically focuses on this matter.

When reporting on the right to life, states parties should provide data on birth rates and on
pregnancy and childbirth related deaths of women. Gender-disaggregated data should be
provided on infant mortality rates. Moreover “states parties should give information on any
measures taken by the state to help women prevent unwanted pregnancies, and to ensure that
they do not have to undertake life-threatening clandestine abortion” (paragraph 10).

To assess compliance with article 7 (prohibition of torture and ill-treatment) of the covenant, as
well as with article 24 (special protection of children), the committee must receive information
on national laws and practice with regard to domestic and other types of violence against women,
including rape, on access to safe abortion for women who have become pregnant as a result of
rape, and on measures to prevent forced abortion or forced sterilization. “In states where the
practice of genital mutilation exists, information on its extent and on measures to eliminate it
should be provided” (paragraph 11).

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Access to justice as spelled out in article 14 of the covenant is not always enjoyed by women on
equal terms with men. “In particular states parties should inform the committee whether there are
legal provisions preventing women from direct and autonomous access to the courts or whether
women may give evidence as men; and whether measures are taken to ensure women equal
access to legal aid, in particular in family matters” (Paragraph 19).

The right of everyone under article 16 of the covenant to be recognized everywhere as a person
before the law is particularly pertinent for women, who often see it curtailed by reason of sex or
marital status. “This right implies that the capacity of women to own property, to enter into a
contract or to exercise other civil rights may not be restricted on the basis of marital status or any
other discriminatory ground. It also implies that women may not be treated as objects to be given
together with the property of the deceased husband or to his family” (Paragraph 19).

As the publication and dissemination of obscene and pornographic material portraying women as
objects of violence is likely to promote such treatment, states parties are called upon to provide
information about legal measures to restrict the publication or dissemination of such material
(Paragraph 22).

The right to marriage, which is the subjects of General comment No. 19 (1990), entails equality
of men and women to enter marriage only with their free and full consent. “Many factors may
prevent women from being able to make the decision to marry freely. One factor relates to the
minimum age for marriage. That age should be set by the state on the basis of equal criteria for
men and women.

These criteria should ensure women’s capacity to make an informed and unforced decision. A
second factor in some states may be that either by statutory or customary law a guardian, who is
generally male, consents to the marriage instead of the woman herself” (Paragraph 23). The
existence of social attitudes which tend to marginalize women victims of rape and which put
pressure on them to agree to marriage are incompatible with a woman’s right under article 23 of
the covenant. “A woman’s free and full consent to marriage may also be undermined by laws
which allow the rapist to have his criminal responsibility extinguished or mitigated if he marries
the victim” (Paragraph 24). The committee notes further that polygamy violates the dignity of
women and should be abolished wherever it continues to exist.

Equality during marriage implies that husband and wife should participate equally in
responsibility and authority within the family (Paragraph 25). States must also ensure equality in
regard to the dissolution of marriage, which excludes the possibility of repudiation (Paragraph
26).

Affirmative action is particularly necessary in connection with the right to participate in the
conduct of public affairs. The committee requires states parties to provide statistical information
on the percentage of women in publicly elected offices including the legislature as well as in
high-ranking civil service positions and the judiciary (Paragraph 29).

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In addition to human rights committee, the committee on the elimination of racial discrimination
adopted a general recommendation (No. 25) on gender related Dimensions of racial
discrimination, as part of the commitment to mainstream gender by all parts of the UN.

Thus, the committee recognizes

“Recognizing that some forms of racial discrimination have a unique and specific impact on
women, the Committee will endeavor in its work to take into account gender factors or issues
which may be interlinked with racial discrimination. The committee believes that its practices in
this regard would benefit from developing, in conjunction with the states parties, a more
systematic and consistent approach to evaluating and monitoring racial discrimination against
women, as well as the disadvantages, obstacles and difficulties women face in the full exercise
and enjoyment of their civil, political, economic, social and cultural rights on grounds of race,
color, descent, or national or ethnic origin”.

Accordingly, the committee, when examining forms of racial discrimination, intends to enhance
its efforts to integrate gender perspectives, incorporate gender analysis, and encourage the use of
gender-inclusive language in its sessional working methods, including its review of reports
submitted by states parities, concluding observations, early warning mechanisms and urgent
action procedures, and general recommendations”.

“Noting that reports submitted by state parties often contain specific or sufficient information on
the implementation of the convention with respect to women. State parties are requested to
describe as far as possible in quantitative and qualitative terms, factors affecting and difficulties
experienced in ensuring for women the equal enjoyment, free from racial discrimination, of
rights under the convention. Data which has been categorized by race or ethnic origin, and which
is then disaggregated by gender within those racial or ethnic groups, will allow the states parties
and the committee to identify, compare and take steps to remedy forms of racial discrimination
against women that may otherwise go unnoticed and unaddressed”.

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