DEBRE MARKOS UNIVERSITY

SCHOOL OF LAW

STATE OF EMERGENCY IN LIGHT OF INTERNATIONAL HUMAN RIGHTS: THE

ETHIOPIAN (2016-17) CASE.

A THESIS SUBMITTED TO THE SCHOOL OF LAW, DEBRE MARKOS UNIVERSITY, FOR

THE PARTIAL FULFILLMENT OF THE REQUIREMENTS OF THE DEGREE OF LAWS
(LLB).

PREPARED BY: BIRUK HAILU

ADVISOR: BEKALU M. (LLB, LLM)

DECEMBER 2017, DEBREMARKOS ETHIOPIA

Thesis approval page

The thesis entitled “state of emergency in light of international human rights: The Ethiopian
(2016-17) case” by Biruk Hailu is approved for the degree of Bachelor of Laws (LL.B)

Name Signature

Advisor _____________________ ______________________

Examiner _____________________ ______________________

Date: ________________
Declaration
This research is my personal work that has not been done by any other individual and that all
sources used have been duly acknowledged.

Signature of confirmation
Name ……………………
Signature………………….
Date……………………………
Advisor name………………
Signature ……………………
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ACKNOWLEDGMENT

First and foremost, I would like to thank the Almighty God and Saint Mary who gives me all the
blessing and allows reaching this phase of my life. I am also grateful to my advisor Instructor
Bekalu M. for his continuous support in the preparation of this work. Lastly i would like to give
my gratitude to my families, friends, instructors and my colleagues who were beside me for the
achievement of this work.
 Table of Content

Title page

Chapter One: Introduction

1.1. Background ……………………………………………………………………………………………….1

1.2. Statement of the Problem…………………………………………………………………………….…...1

1.3. Preliminary research questions………………………………………………………………………......2

1.4. Objective of the Study……………………………………………………………………………………....2

1.4.1 General objective…………………………………………………………………………………………3

1.4.2 Specific objective…………………………………………………………………………………………3

1.5. Significance of the Study……………………………………………………………………………………3

1.6. Scope of the Study………………………………………………………………………………………….…4

1.7. Research design and Methodology…………………………………………………………………..........4

1.8. Organization of the study…………………………………………………………….……………………..5

Chapter Two: conceptual understanding of state of emergency in line with international law…...

2.1 Historical background………………………………………………………………………………………...

2.2 What is state of emergency………………………………………………………………………………….

2.2.1Components of state of emergency……………………………………………………………………...

2.2.2 Essential principles of state of emergency

2.3 special powers can be proclaimed in state of emergency

2.4 Branch of government empowered to declare state of emergency…………………………………

2.5 Derogation in Cases of Emergencies

Chapter Three: The compatibility of FDRE constitution with international human right instruments.
3.1 Declaration of state of emergency under FDRE constitution…………………………………………

3.1.1 The role of HPR related to state of emergency………………………………………………………...

3.1.2 Function and power of council of ministers during state of emergency………………………...

3.2 Non derogable rights under FDRE constitution ……………………………………………..................

3.2.1Nomenclature of the state…………………………………………………………………………………….

3.2.2 The right to be free from slavery and servitude…………………………………………………………

3.2.3The right to equality…………………………………………………………………………………………

3.2.4The right to self-determination…………………………………………………………………………..

3.3 Restrictions of rights during the state of emergency……………………………………………….

3.3.1 Restrictions on freedom of expression………………………………………………………………

3.3.2 Restrictions on freedom of assembly and protest…………………………………………………

3.3.3 Arbitrary detention and lack of due process………………………………………………………

3.3.4 Freedom of movement of refugees……………………………………………………………………..

Chapter Four: Conclusion and Recommendation…………………………………………………………

4.1 Conclusion…………………………………………………………………………………………………………

4.2 Recommendation…………………………………………………………………………………………………

Bibliography……………………………………………………………………………………………………………
.
ABSTRACT

This research is intended to focus on the FDRE constitution and its human right protection during
emergencies in line with international human right instruments. In the following paragraphs, I will
state the Principal legal questions. Then the objectives, significance and methodologies of the
research will be put forward. Finally, the theoretical and some normative framework of the research
will briefly provide. Protecting human rights is difficult for enforcement; in order to secure this
concept good constitutional formation is necessary. And the hand of the state to derogate the rights
should be Constitutional based and in accordance to international standards to which Ethiopia is a
party. Taking these requirements, the thesis deals with the analysis of the principles and provisions of
them FDRE constitution in line with international instruments.
In doing so, the thesis compares International human right instruments and the FDRE constitution.
Based on the comparisons the researcher states the gaps in the FDRE constitution on the protection
of human rights (especially non Derogable rights) and analyzes the enforcement of essential elements
of state of emergency, the Power of the state, the non derogable rights enshrined in the constitution.
Besides to this, the difficulties behind the enforcement of these rights are scrutinized.
 ABBREVIATIONS

ACHPR African Charter on Human and people’s right

ACHR American Convention on Human rights
CCI Council of constitutional inquiry
ECHR European convention on Human rights
FDRE Federal Democratic Republic of Ethiopia
HoF House of Federation
HPR House of People Representatives
HRC Human rights Committee
ICCPR International Convention on Civil and Political rights
UDHR Universal Declaration of Human rights
UK United Kingdom
VC Vienna convention

CoM Council of ministers

CHAPTER ONE: INTRODUCTION

1.1 Background of the study

A state of emergency drives from a governmental declaration made in response to an

extraordinary situation posing a fundamental threat to the country. The declaration may suspend
certain normal functions of the government, may alert citizens to alter their normal behavior or
may authorize government agencies to implement emergency preparedness plans as well as to
limit or suspend civil liberties and human rights. 1 And this in turn rise the issue of violation of
human right under the shadow of state of emergency. The universal declaration of human rights
stipulates that the recognition of inherent dignity and the equal and inalienable rights of all
members of human family is the foundation of freedom, justice and peace in the world. The need
to declare a state of emergency may arise from situations as diverse as an armed action against
the state by internal or external elements, a natural disaster, civil unrest, an epidemic, a financial
or economic crisis or general strike.2

The international covenant on civil and political rights (ICCPR) affirms that human rights
are inviolable, inalienable and inherent in all human beings. This means as much as possible the
state shall give due respect for non-derogable human rights especially. 3 When we look our
domestic laws concerning human rights the FDRE constitution under its article 9 clearly
provided that international laws, treaties or other which are ratified by Ethiopia are integral part
of the law of the land which means that they have equal abidingness with laws those are made
domestically. This helps us to strengthen our argument that the provisions of ICCPR should be
applicable since Ethiopia is a signatory party to that specific treaty.4

In the wake of Ethiopia's State of Emergency declared on 9 October 2016, some quarters within
and outside the country have been engaging in misinformation and disinformation about the very

1
The Backgrounder;the Geneva democratic control of armed forces, security sector governance and
reforms/DCAF/(2005).
2
Ibid.
3
International covenant on civil and political rights, Adopted and opened for signature, ratification and accession
by General Assembly resolution 2200A (XXI) of 16 December 1966, entry into force 23 March (1976).
4
The federal democratic republic of Ethiopia constitution, negarit gazette proclamation number 1/1995, article (9).
reasons and purposes of the declaration. Needless to say that the Government of Ethiopia
introduced this temporary measure to deal with an alarming threat to the country's peace and
stability as well as extensive damage on public and private properties by anti-peace elements in
collaboration with militant and extremist groups residing overseas. 5 “The level of violence and
destruction Ethiopia witnessed prior to the announcement of the State of Emergency were
unprecedented and no one could imagine that the situation could be controlled without such
timely and appropriate measure.” During the period of state of emergency, the Ethiopian
government has prohibited many human rights involves; the right to be free from inhuman
treatment, the right to free movement, the right to equality etc. so this paper will try to assess the
rationales behind prohibiting those rights’ and determine the appropriation of measures taken by
the government.

1.2 statement of the problem

The international covenant on civil and political rights (ICCPR) under its article 4 provided that
the States Parties to the Covenant may take measures derogating from their obligations under the
present Covenant to the extent strictly required by the exigencies of the situation, provided that
such measures are not inconsistent with their other obligations under international law and do not
involve discrimination solely on the ground of race, color, sex, language, religion or social
origin. It also explicitly stipulated that no derogation should be made on the right to life, the right
not to be subjected to torture or cruel or inhuman and degrading punishment, protection against
slavery, right to be recognized elsewhere as a person, right against criminal accusation which
doesn’t constitute criminal offence and freedom of thought, conscious and religion. 6 On the other
hand the 1995 FDRE constitution Based on its article 9, international laws, treaties or others
which are ratified by the state has equal value to the law of the land.7

However Ethiopia missed some human rights especially rights which are given non-derogable
status in ratified treaties i.e. ICCPR. Because of these there exist incompatibility between FDRE
constitution and international human right instruments. The question is whether or not

5
The vindication of Ethiopia’s state of emergency, embassy of Ethiopia,Washington D.C.
6
Supra note at 3 p.1
7
Supra note at 4 p.1
derogablity of non-derogable right is a necessary element for the effective averting of the
condition, what is the power of the council of ministers and it is approved by the house of
peoples’ representatives in the process of violation of those rights? The practice is the state
derogates itself from its obligation greater than the tendency of averting the danger. Another
problem is related with the legislature organ of the government in case of lack of actual fixed
period. Currently the Ethiopian government exercises the state of emergency in this situation the
government of the state in order to restore law and order in the country by controlling the illegal
demonstration and distraction of the economy the government take action to bring peace and
stability of the state. The problem in this issue is the law and the practice of the state is somehow
different in a sense, some actions taken by the command post or the government is out of
constitutional ground. As a result the act of the state is illegal. In order to make it legal the
government must fulfill the legal requirements and the fundamental provisions of the constitution
shall be respected.8

1.3 Objectives of the study

1.3.1 General objective

The general objective is to determine whether Ethiopia properly handle its duty of protection
human rights during the state of emergency in accordance with international and national human
right instruments.

1.3.2 Specific objectives

The paper will have the following specific objectives to achieve the above general objective:

 To explore whether Ethiopia (FDRE) have a legal and institutional guarantee for the
protection of human rights during state of emergency.
 Exploring the actual scenario of Ethiopia in treatment of human rights.
 Assess whether the 2016/17 state of emergency fulfilled the conditions listed in the
FDRE constitution.

8
Supra note at 3 p.1
  Identifying whether those actions taken by the government during the 2016/17 state of
emergency is in line with international and national human rights.

1.4 preliminary research questions

The followings are the major preliminary questions to be addressed in the research.

1. What are the legal institutional setups that work at the time of state of emergency in Ethiopia?
Are they in line with the protection of human rights?

2. What are the essential elements (conditions) to be fulfilled before declaring state of
emergency?

3. How to reconcile the FDRE constitution and ratified international laws especially on human
rights protection?

4. What kind of violations of rights was at the period of state of emergency?

1.5 significance of the study

This paper will have an invincible contribution in assessing Ethiopia’s position towards
international laws and treatment of international treaties it has ratified in connection with state of
emergency.

It will also make its own contribution in investigating the failure of Ethiopian legal system in
accommodating international human right principles which need due emphasis in case of state of
emergency and reconciling its laws to be operated in accordance with those laws and further
strengthen the argument for the protection of human rights.

1.6 scope of the study

State of emergency is a wide area of law which couldn’t be covered by this single paper. Rather
this paper will be going to pick the common international laws governing state of emergency
which are contained under different human right instruments and compare them with the
domestic laws of Ethiopia concerning handling of human rights in cases of a state of emergency.
It raises human right protection problems that faces the country during the implementation of the
recent state of emergency declaration in Ethiopia 2016/17.It will focus on the laws of Ethiopian
legal system in line with international human right instruments with regard to state of emergency

1.7 Research design and methodology

The research is a doctrinal research type interested with the discovery and development of a well
figured thesis on state of emergency through using different international human right sources
and dig out arguments and thoughts of different human right scholars. To this end, the study is to
be conducted with due regard to qualitative research methodology.

Data sources

Primary data

The primary data employed in doing the research were; both national and international
legislations, rules and laws were included.

Secondary data

Among secondary sources textbooks, journals, encyclopedia, websites were included.In doing
the study the paper set up a conceptual and legal framework which serves as a springboard to
analyze treatment of human right during state of emergency.

1.8 Organization of the Study

The paper will be organized in to four chapters. The first chapter is an introductory part that will
deal with the points as to why and how the research is to be conducted. The Second chapter will
expound the notion and conceptual understanding of state of emergency in light with
international laws. The third chapter will explore about Ethiopian 2016-17 state of emergency
and its compliance with international human right laws and analyze the Ethiopian Constitutional
system. The fourth and the last chapter of the paper will be the conclusion and recommendation.
 CHAPTER TWO: THE CONCEPTUAL
UNDERSTANDING OF STATE OF EMERGENCY IN LINE
WITH INTERNATIONAL LAW

2.1 Historical Background

The question concerning the condition and application of the contemporary state of emergency is
now at the center of theoretical exploration across a range of specialties within the humanities
and the crucial social sciences from sociology and political theory to literature, cultural,
philosophical and international studies.9

The orthodox modern state of emergency was a situation, declared by the state in which the
strategies and tactics of the military were employed legally, typically because of a number of
occurrences of civil disorder such as terrorism, the methodological use of carnage and coercion
to attain political aims. Nazi Germany’s decree of 1933 are for instance a first rate illustration of
the modern state of emergency.10 The 28, February decree for example was one of the most
oppressive acts of the Nazi administration. It authorized the suspension of civil liberties in the
wake of the fictitious crisis created by the Nazi’s as a consequence of the fire that wrecked the
Reichstag parliament building on the preceding days. 11 George w. Bush the president of united
states and Tony Blair the prime minister of Great Britain has not of courts formally affirmed a
contemporary state of emergency in their governments. Yet its possibly arguable that the Bush
and Blair regimes are certainly begins to lay the foundations for the state and purpose of a hyper
modern state of emergency.12

Any democratic government faced with a war, an invasion, a domestic insurrection, or other type
of emergency must determine how it will respond. How much power will the executive be
given? What will be the role of the other branches of government? How long will the response
last? How will the government administer justice during such a period? What, if any,

9
John Armitage: State of emergency an introduction, theory, culture and society. vol 19, issue 4.pp 27-38.published
on august 1, 2002
10
Ibid
11
Ibid
12
Ibid
fundamental rights will be sacrificed in order to protect the nation? 13 The way in which a nation
responds to such questions will undoubtedly determine how successful it will be in responding to
the crisis with which it is face.

The universal declaration on human rights (UDHR) is the first international instrument that
affirms the inalienable, inviolable and indivisible nature of human rights. Article 29(2) of the
UDHR general limitation clause provision stipulated that human rights can be limited for the
purpose of securing due recognition and respect for the rights and freedoms of others and of
meeting the just requirements of morality, public order and the general welfare of a democratic
society. Apart from this general limitation the UDHR doesn’t contain any derogation clause.

ICCPR is the first international human right convention that contain derogation clause under
article 4 of the convention.14The drafters of ICCPR learning their lessons during a long and
vicious war, wanted to leave a room for possible derogation of human rights and at the same time
protect the rights of individuals at the time of a serious emergencies. They therefore included
after much negotiation, on a certain strict condition, these strict conditions include both
substantive and procedural protective measures against possible abuses. Similar provisions were
also included in the European court of human rights and African court of human rights. The
ICCPR and ECHR have a strong resemblance in that they were drafted simultaneously. While
ECHR was adopted in 1950 the drafting of the ICCPR continued. In the drafting process of the
derogation clause in the ECHR, a committee of experts was established to examine its need in
the light of draft article four of the ICCPR. 15 The drafting negotiation of ACHR derogation
clause which was held around 1969 was less difficult.

The emergency concept in the ACHR is a little bit different from the ICCPR and ACHR in that
the former refers to derogation in times of war, public danger or other emergencies that threats
the independence or security of the state party.16

2.2 What is state of emergency?

13
William Feldman: Theories of Emergency Powers, a comparative analysis of american martial law and the French
state of siege, cornell international law journal vol 8.
14
Supra note 3 at p.1
15
Ibid.
16
ibid.
An emergency is a situation outside an ordinary course of events .in other words state of
emergency is a situation which affects the public order or endangers the security of the state or
may cause the country or its part to fall under the state of difficulty. A state of emergency is
classified into dejure and defacto. Dejure state of emergency exists when states comply with
legal requirement for its declaration. If a state exercised its power without complying with the
preconditions prescribed in its constitution or international human right instruments, there is a
defacto state of emergency. A dejure state of emergency becomes defacto when emergency
measures are extended beyond the formal termination of a declared state of emergency. A state
of emergency is a situation in which a government is empowered to perform actions that it would
normally not be permitted. A government can declare such state during a disaster, civil unrest, or
armed conflict. Such declaration alerts citizens to change their normal behavior and orders
government agencies to implement emergency plans.17 Justitium is its equivalent in Roman law,
a concept in which the senate could put forward a final decree (senatus consultum ultimum) that
was not subject to dispute. States of emergency can also be used as a rationale or pretext for
suspending rights and freedoms guaranteed under a country's constitution or basic law.18

A state of emergency derives from a governmental declaration made in response to an

extraordinary situation posing a fundamental threat to the country. The declaration may suspend
the normal functions of the government, alter the normal behaviors of citizens or may authorize
government agencies to implement emergency preparedness plans as well as to limit or suspend
civil liabilities and human rights. The need to declare state of emergency are not uncommon
occurrences particularly in dictatorial regimes in which the state of emergency may endure as
long as the regime lasts. In some situations martial law is also declared allowing the military
greater authority to act. Other terms for referring the state of emergency situation are state of
exception, state of alarm and state of siege.19

In the concept of local legal constitution and local politics, the state of emergency is an
extraordinary incident incurred by a social commune (mainly in countries which governments do
not touch on inheritance) with an overall unchanged qualification; various problems happen
under such circumstance would all be out of the boundary of normal expectation of legal orders,
17
Agamben, Giorgio (2005). State of Exception, Chicago: University of Chicago Press. ISBN 978-0-226-00925-
4.Excerpt online: "A Brief History of the State of Exception".
18
ibid
19
Supra note 1 at p.1
and therefore one needs to exercise powers that are out of constitutional power operation in its
operational system and protecting system of rights, such exercises would require a set of special
legal system that exceeds the normal governing disciplines. Under a stable social system, human
rights protection is a must in the legal constitution; however, in the case of a non-stable social
system, how to protect the citizens’ rights would be a comparatively difficult issue. Its
difficulties lie in how to draw a line between the extraordinary manipulation of government
powers and the legal rights possess by the citizens.20

States of emergency may play a unique role in constitutional practice and theory. A comparison
of constitutional orders reveals that they have to choose between seeking to entrench in a written
constitution, if they have one, rules about how the state may respond to an emergency, and
leaving such responses to be decided as and when an emergency occurs.21

Under international law, rights and freedoms may be suspended during a state of emergency; for
example, a government can detain persons and hold them without trial. All rights that can be
derogated from are listed in the International Covenant for Civil and Political Rights. Non-
derogable rights cannot be suspended. Non-derogable rights are listed in Article 4 of the ICCPR,
they include right to life, the rights to freedom from arbitrary deprivation of liberty, freedom of
slavery and to freedom from torture and/or ill-treatment. 22 Some countries have made it illegal to
modify emergency law or the constitution during the emergency; other countries have the
freedom to change any legislation or rights based constitutional frameworks at any time that the
legislative chooses to do so. Constitutions are contracts between the government and the private
individuals of that country.

The International Covenant for Civil and Political Rights (ICCPR) is an international law
document signed by states. Therefore, the Covenant applies to only those persons acting in an
official capacity, not private individuals. However, signatories to the Covenant are expected to
integrate it into national legislation. The state of emergency (within the ICCPR framework) must
be publicly declared and the Secretary-General of the United Nations must be contacted
immediately, to declare the reason for the emergency, the date on which the emergency is to

20
Ibid
21
David Dyzenhaus: The Oxford Handbook of Comparative Constitutional Law, Edited by Michel Rosenfeld and
András Sajó Publication Date: May 2012 Subject: Law, Comparative Law, Constitutional and Administrative Law.
22
Ibid.
start, the derogations that may take place, with the timeframe of the emergency and the date in
which the emergency is expected to finish. Although this is common protocol stipulated by the
ICCPR, this is often not strictly followed; enforcement is better regulated by European
Convention of human rights.23

2.2.1 Components of state of emergency

States of emergency have two components:

 A legal framework consisting of the constitutional and legislative bases for the state of
emergency, and
 An operational framework involving the organizational structure and strategic plans for
dealing with the state of emergency. While separate, these components must be
compatible; in other words, the legal framework must take into account operational
requirements, and the operational requirements must respect the legal framework,
including international law.24

2.2.2 Essential principles of state of emergency

The siracusa principle was adopted in the year 1984 in siracusa, Italy. International law express
from 17 countries met, to consider the ICCPR’s limitation and derogation provisions. The
Siracusa principles although the outcome of a nongovernmental conference contains a valuable
reference for the interpretation of the derogation clause provided in the ICCPR. it reflect a need
for the examination of a particular circumstances warranting derogation to effectively implement
the rule of law. It classifies among other things, the meaning of public threat affecting the life of
the nation, proclamation, notification and termination of the state of emergency and non
derogable rights.25

23
Supra note 3 p.1
24
Supra note 1 p.1
25
See the siracusa principles on the Limitation and Derogation Provisions in the International Covenant on Civil and
Political Rights American Association for the International Commission of Jurists.
The Paris minimum rights standard in 1985, the international law association adopted a set of
minimum standards to govern the declaration and administration of state of emergency. These
minimum standards are intending to ensure among others this, that even when a government
declares a bona fide state of emergency, the basic human rights continued to be observed and
respected. In addition it calls upon states that are in a state of emergency to be subjected to
judicial review or others review. 26 Overall the Paris minimum standards are set with the purpose
of providing a guideline for both a government and non-governmental organizations in a state of
emergency.

A country’s constitution or legislation normally describes the circumstances that can give rise to
a state of emergency, identifies the procedures to be followed, and specifies limits on the
emergency powers that may be invoked or the rights that can be suspended. While each country
will want to define its own practices, international norms have developed that can provide useful
guidance. For example, important international treaties such as the European Convention of
Human Rights and Fundamental Freedoms (ECHR) and the International Covenant on Civil and
Political Rights (ICCPR) stipulate that states are to observe the following principles; firstly
Temporality, which refers to the exceptional nature of the declaration of a state of emergency
and it is applicable temporarily to avert the existing danger. Secondly the existence of
Exceptional threat which means the crisis must present a real, current or at least an imminent
danger to the community.

Thirdly there must be declaration which needs the state of emergency to be announced publicly;
this informs citizens of the legal situation and reduces the possibility of a de facto state of
emergency, that is, a situation whereby the state restricts human rights without officially
proclaiming a state of emergency. Fourthly notification of the measures taken must be made to
other states and relevant treaty-monitoring bodies; for example, if a state is to derogate from its
obligations under the ECHR or ICCPR then it must inform the Secretary General of respectively
the Council of Europe or the UN of its derogation, the measures it has taken and the reasons
therefore, as well as the termination of the derogation. Fifthly there must be proportionality
which concerned with the measures taken to counter the crisis must be proportional to the gravity
of the emergency situation; this applies to the area of application, their material content and their
26
The Paris Minimum Standards of Human Rights Norms in a State of Emergency, American Journal of International
Law October, 1985.
duration and sixthly the principle of legality have to be fulfilled, human rights and fundamental
freedoms during a state of emergency must respect the limits provided for by the relevant
instruments of international and national law; furthermore, a state of emergency does not imply a
temporary suspension of the rule of law, nor does it authorize those in power to act in disregard
of the principle of legality, by which they are bound at all times. Finally the Intangibility
principle, this concerns the fundamental rights from which there can be no derogation, even
during times of emergency.

2.3 special powers can be proclaimed in state of emergency

Special powers are given to the government by the virtue of the government by the constitution
or statutory laws.27 Examples of emergency measure and power range widely for instance; The
restriction of press freedom and prohibition of meetings, domestic deployment of armed forces,
search of homes or other private places without warrants and arrest without charges, confiscation
of private property (with or without compensation) or its distraction, regulation of the operation
of private enterprises, interference with financial transactions and export regulation and special
legislation to punish non-compliance with emergency regulation.

In some countries for e.g. in United Kingdom (UK) special judicial bodies may set up during the
state of emergency, where as in other countries (Germany) extraordinary judicial organs are
forbidden. In state of emergency responsible for the government must remain with civilian
authorities on the national and local levels. Security force assists the civilian authorities in
subsidiary rule.

2.4 Branch of government empowered to declare state of emergency

The role of the parliament, most legal systems ensure that the executive does not have the sole
authority to declare state of emergency and provide for the parliamentary ratification the decision
of the executive with a qualified vote. As a general rule governments checked by a parliament
must provide a well justification for both their decision to declare the state of emergency and the
specific measures to address the situation. Most parliaments also have the power to review the
state of emergency at regular intervals and to suspend it as necessary. This parliamentary role is
especially important in long lasting states of exception, where the principle of civilian supremacy
27
Supra note 1 p.1
over the security sector may be at risk. Whatever the emergency situation, the post ad hoc
accountability of the parliament that means the right to conduct inquiries and investigations on
the execution of powers ought to be guaranteed by the law. 28 These are important for both
assessing government behaviors and identify lessons with a view to future emergencies

Most states have a legal mechanism governing the declaration of state of emergency and
implementation of derogations as concerns the prerogative to declare state of emergency. The
three most common approaches are the following;

 The executive declares state of emergency and inform the legislative within a specified
period of time. (eg.US).
 The executive declares state of emergency but must have to be ratified by the parliament
before it can proceed with an emergency measure (e.g. Germany).
 The parliament itself declares state of emergency (Hungary). Typically, a state of
emergency empowering the executive to name coordinating officials to deal with the
emergency and override the normal administrative process regarding the passage of
administrative rule.

2.5 Derogation in Cases of Emergencies

The Ethiopian Constitution recognizes possibilities that may require the suspension of protected
rights. Derogation clauses relate to provisions that permit the temporary suspension of the
application and enjoyment of rights in response to incidences of emergency that threaten the life
of a nation. Derogations do not, however, confer absolute discretion on the executive to act on
its whims; there are substantive as well as procedural requirements that govern such emergency
situations.29 There are, moreover, certain rights, which may not be suspended even in threatening
situations.

These preconditions are designed as a protection against possible abuses of human rights on the
pretext of emergencies while at the same time authorizing states to secure, maintain and ensure
28
See the siracusa principles and the Paris minimum standard principles on human rights norms International law
association: R.B lillich “the Paris minimum standard of human rights norms in state of emergency 79 American
journal on international law 1076 at 175 (1985).

29
. Supra note at 3, art. 93(4, b)
the sustenance of fundamental national and international interests. Article 93 of the Constitution
prescribes the requirements, both procedural and substantive. The only conditions that may
justify derogations are occurrence of an external invasion, a breakdown of law and order which
cannot be controlled by the regular law enforcement agencies and personnel, or the occurrence of
a natural disaster or an epidemic.30

The Council of Ministers of the federal Ethiopian government has the power to declare state of
emergency under any of the above situations. The Regional States are also allowed to declare
state of emergency to avert natural disaster or epidemic within their respective territories.
However, the ultimate power to approve or annul a declaration of emergency made by the
Council of Ministers, lies with the House of Peoples’ Representatives (HPR). This decision is
required to be made within 48 hours if the HPR is in session, or within 15 days. 31 If the HPR is
not in session at the time of the declaration of emergency. Upon approval by a two-third majority
vote, the state of emergency may remain up to six months’ subject to its renewal for up to four
months on each occasion through the same procedure. If annulled, the declaration will be
repealed forthwith.32

The Constitution authorizes the possible suspension of most of the fundamental human rights
and freedoms to “the extent necessary” with handful exceptions. The only non-derogable rights
are the prohibition against cruel, inhuman, and degrading treatment or punishment, and slavery
or servitude, and trafficking (Article 18), the right to equality and equality before the law (Article
25) and the right to self-determination up to secession (Article 39).33

The Constitution requires the HPR to establish, simultaneously with the approval of the state of
emergency, an ad hoc State of Emergency Inquiry Board consisting of seven members chosen
and assigned by the House from among its members and from legal experts. This body, among
others, monitors and follows up the situation to ensure that no measure taken during the state of
emergency is inhuman and ensures the “prosecution of perpetrators of inhuman acts”. 34 It should

30
Ibid.
31
Supra note at 3 art 93(2)(a)
32
Art.93 at p 19
33
ibid
34
Supra note at 3 art 93(6)
be noted that the HPR only has the final say over federal declarations of emergency by the
Council of Ministers. States have their own constitutional provisions governing emergency
declarations and there is no need for approval by the HPR.

It is worth noting that the Constitution does not provide the duty of the Council of Ministers or
the HPR to publish the State of Emergency declaration and ensure its accessibility. Moreover, it
does not reaffirm the duty of the State to inform, inter alia, member states to the ICCPR.

CHAPTER THREE: THE COMPATIBILITY OF FDRE

CONSTITUTION WITH INTERNATIONAL HUMAN RIGHT
INSTRUMENTS.

3.1 Declaration of state of emergency under FDRE constitution

In federal country, extraordinary emergency situation would call for a greater concentration of
powers in the federal and national authorities and a greater encroachment on the powers
normally assigned to the state governments.35 In Ethiopia, power to decree a state of emergency
of federal level entrusted to council of ministers and at the state level given to state executive as
pursuant to art.93(1)of the constitution. The grounds to declare such emergency at the federal
level are extend invasion, breakdown of law and order which endangers the constitutional order
and which cannot be controlled by the regular law enforcement agencies and personnel, a
national disaster, or an epidemic occur. State wide state of emergency declared only when the
latter two events occurred.

Concerning its procedure, the state has a constitutional autonomy to determine the Process to be
followed to declare state wide emergency due to its not addressed in the FDRE constitution.
However, when the decree is at the federal level the constitution sets a certain
standards.36Accordingly, the power to declare state of emergency is given to the council of
ministers (herein after, COM).Also article 55(8) reads “Inconformity with article 93 of the
constitution the HPR shall declare a state of Emergency and above all it shall consider and
resolve on the decree of a state of Emergency declared by the executive. This dictates that, the
constitution adopts both the executive and parliamentary mode of declaring state of emergency.
Its executive Model due to the power to decree the state of emergency is entrusted to COM as
per Article 93(1) (a) of the constitution. On the other hand, it’s a parliamentary model, as
pursuant to article 93(2) and (3) of the Constitution, the decree of COM should be approved by
the HPR to have a valid force of law, since the non-approval renewal of by the HPR, so, that the
emergency decrees we have a valid force at law. The house has a power either to approve or
reject the decree submitted to it. It is if approved by the parliament (HPR), by two third (2/3)
majority, state of emergency declared by the council of ministers can remain in effect. Also it is
the power of the house either to deny or allow renewal of the state of emergency proclamation at
every four months after the laps of six months period.

3.1.1 The role of HPR related to state of emergency

35
Sileshi Zeyohannes, analysis of constitutionality on state of emergency.
36
The constitution of FDRE ,federal Negarit Gazette, first year proclamation no.1/1995,ar
93(A).(1995)
The roles of HPR includes; declare state of emergency as per article 50(8)or approve state of
emergency decreed by the council of ministers art.93(3),decide whether on renewal or
discontinuance of state of emergency every four months art.93(3) and establish the state of
emergency inquiry board which performs various duties and responsibilities during state of
emergency art.(5)(6).

3.1.2 Function and power of council of ministers during state of emergency

The council of ministers have the powers and functions of issuing the decree of state of
emergency art.93(1),refraining from suspending or limiting the rights provided under articles
1,18,25 and 39(1)(2) and suspending political and democratic rights contained in the constitution
to the extent necessary to avert the conditions art.93(4,b).

3.2 Non derogable rights under FDRE constitution

In the exercise of state of emergency, there are non-derogable provisions. Accordingly, article 1
(nomenclature of the state, not right), article 18 (prohibition of in human treatment)article 25
(right to equality),and sub articles 1 and 2 of article 39 (right to self-determination including
secession) are not suspended during state of emergency as pursuant to article 93 (4)(c) of FDRE
constitution. When we compare such lists with article 4(2) of the ICCPR non derogable rights,
most rights of ICCPR provisions are not included in the FDRE constitution.

The list of non-derogable rights recognized in the ICCPR and omitted in the FDRE constitution
are; article 6(the right to life) article 11 (Prohibition of imprisonment for the inability to
discharge contractual obligations37,article 15 (prohibition against ex-post facto criminal
law)article 16(the right to recognized as a person before the law, and article 18(freedom of
thought conscience And religion).These rights are argued as derogable in FDRE constitution
based on the Contrary reading of article 93(4).This implies that, the FDRE constitution has lesser
protection than that of ICCPR standard. Moreover, the right to life is the most vital and the basis
for other human rights is derogable under the constitution. This endangers/deteriorates the
protection of human rights in general. However, on one hand, states of Ethiopia federation have
provision in their own constitution including the right to life as non derogable right. For instance
the Oromia regional constitution given better protection human rights by explicitly
37
Supra note at 3 Art. 93 (2),(3)
acknowledging around eight human rights non-derogable. i.e. the right to life, prohibition against
inhuman treatment, rights of arrested persons, right to equality, honor and reputation, the right to
physical integrity, the right to freedom of thought, religion and consciousness. On the other hand,
Somali Regional state constitution does not include the prohibition of inhuman treatment and the
right to equality, and also, Afar constitution not includes the right to self determination including
secession as non derogable right.

The FDRE constitution empowers different organs of government to address the operation of
state of emergency based on the principle of separation of power as it is proved to be an effective
mechanism for controlling abuse of powers. The purpose of this principle is to prevent any single
branch of the government from becoming too powerful, to curve despotism and arbitrariness and
to promote liberty democracy and good governance by creating a system of check and balance.

Most domestic laws contain emergency clause that provides for derogation of human rights in
times of emergency. Most legal scholars recommended for constitutions to clearly set out the
conditions under which state of emergency may be with the purpose of knowing in advance the
extent of states of emergency.38Article 93 of the constitution is not part of the bill of rights
provisions. It is written under chapter 11 under the heading miscellaneous provisions. Article 93
provides, among other things, which branch of Government has the power to declare emergency,
the time limit for the state of emergency and non derogable rights under state of emergency.
Ethiopia being a federal state, the power of the government to declare a state of emergency is
vested both on the states government and the federal government 39. The federal government can
declare state of emergency if the crisis is caused by external invasion, break down of law and
order which endangers the constitutional order and which cannot be controlled by the regular law
enforcement agencies and personnel, a natural disasters or an epidemic. 40 The states can only
declare a state wide state of emergency if a natural disasters or epidemic occurs 41. The power to
decree a state of emergency at the federal level is vested on the council of ministers subject to the
approval of house of people representatives (HPR)42 at the state level it is the state executives

38
Supra note at 3 Art.93
39
Ibid at 3 p.1 art.93 (1)
40
Ibid at 3 p.1 93(1,a)
41
Article 93,(1)b, of the constitution.
42
ibid
that have the power to declare state of emergency 43. The HPR by the two third majority votes
have to approve the decree within 48hrs of the declaration of the state of emergency 44. If the
HPR is not in secession the decree will have to be approved within 15 days of its adoption.45

The period for the state of emergency is up to six months, with the possibility of renewal every
four months by the HPR46. The constitution provides for the establishment of state of emergency
inquiry board, which has the power, among other things to inspect and follow up all the measures
taking during state of emergency and ensure the prosecution of perpetrator of inhuman acts. This
is highly commendable also provides for a sort of checking mechanisms against abuse, which
will protect human Rights in times of emergency.47

3.2.1 Nomenclature of the state

The nomenclature of the state declares the type of government that is established, a federal and
democratic state. This provision of the Constitution is non-derogable under the Constitution. This
implies that a state of emergency will not in any way affect the Federal structure of Ethiopia.
Question will arise if at all this is a right? If the answer is yes, will that not defeat the right to
self-determination, the right to political participation and other rights that are recognized under
the Constitution. There is no provision both in the ACHPR or the ICCPR that designates this as a
right. A structure of the state is based on the will of the people, which is expressed through
participation. It is a dynamic concept and is not one that is fixed and applicable throughout. The
African Commission in the case of Katangese peoples’ congress v Zaire has expressed this View
by stating that self-determination may be exercised in the form of independence, self-
government ,federalism or unilateralism or any other form. 48 Hence, to hold that federalism is a
non-derogable right would be tantamount to limiting the right to self determination and refusal to
recognize the continuing 49nature of the right.

3.2.2 The right to be free from slavery and servitude

43
Supra note 3 at p.1 art.93(1,b)
44
ibid at 3 p.1 art 93(2,a)
45
Art.93(2)b) of the constitution
46
Article93(6) of the constitution
47
Supra note 43
48
Katangese People’s CongressVZaire [KatangeseCase]2000ACHR72ACHRP4.(1995)
49
NJ.Ayawickrama;The judicial application of Human Rights law national regional and international
Jurisprudence [2002]
The right to freedom from slavery and servitude is non derogable under the International
covenant (article 4(2), and 8 (2) and the European convention (article 15 (2 ) and 4(1)).However,
only article 8(1) of the international covenant Specifies expresses verb is that “slavery and the
slave trade in all their forms shall be prohibited”. According to article 27(2)of the American
convention, on the other hand, article 6 as a whole is non derogable, which means that not only is
the right not to be subjected to slavery, involuntary servitude, salve trade and traffic in women
non derogable but also the right not to be required to perform forced and compulsory labour.
Like the article regulating the right to life the articles defining the right not to be subjected to
forced and compulsory labour contain limitation provisions that exempt from the definition of
forced or compulsory labour “certain kinds of labour such as services exacted in time of
emergency, danger or calamity that threatens the wellbeing of the community. To the extent that
the labour required falls within this category, if can, of course, also be required in the public
emergencies (for the texts of the relevant provisions, see article 8(3) (c) (3)of the international
covenant,article6(3) (c)) of the American convention 50 and article4(3)(c))of the European
convention.

The FDRE constitution under article 18 provides for the prohibition of slavery or servitude
including forced or compulsory labour. Moreover, trafficking in human beings for whatever
purpose is prohibited. Unlike the ICCPR prohibition of trafficking is a non derogable right under
the constitution, with regard to forced labour, through it is listed under article18, service exacted
during emergency or calamity threatening the life or well-being of the community, any economic
and social development activity voluntary performed by a community within its locality fall
under the exception of forced labour 51 the ICCPR provides for the prohibition of forced labour
except for a certain practices. Article 18 (1) of the FDRE constitution states about everyone has
the right to Protection against cruel, inhuman or degrading treatment or punishment. The right to
freedom from torture or other forms of ill treatment is also non derogable in all three treaties
(article 7 of international covenant, article 5(2) of the American convention and article 3 of the
European convention).This means that states may at no time resort to torture or to cruel, inhuman
or degrading treatment or punishment in order, for instance to punish or to extract confession or
information from suspected terrorists or other offenders. The inter-American court of human

50
Art.4 of the ICCPR
51
Supra note at 3 p.1 art.18(4)
rights has specified that, as in times of peace, the state remains the guarantor of human rights
including the rights of people deprived of their liberty and is thus also responsible for the
Conditions in detention establishments. The use of torture and of cruel, inhuman or degrading
treatment or punishment is prohibited at all times, including in times of war or any other public
emergency threatening the life of the nation. The prohibition of torture and other forms of ill
treatment is thus also strictly prohibited in the fight against terrorism and hard crime. Torture or
other forms of ill treatment may not be used to extract information or Confession from suspects.
Prolonged in detention amounts to a form of ill-treatment prohibited by international law. The
FDRE constitution respects such types of inhuman treatment with including the list of non-
derogable rights on article 93 of the Constitution.52

3.2.3 Right to equality

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall guarantee to all persons equal and effective
protection without discrimination on grounds of race, nation, nationality or other social origin,
color, sex, language, religion, political or other opinion, property, Birth or other status. Article 25
of the constitution affirms equality of all persons before the law and equal protection of the law
without any discrimination based on race, religion political opinion or other status. Despite the
fact that equity is not included as one of the non derogable rights under ICCPR, the human rights
committee has opinion that there are elements or dimensions of the right to non-discrimination
that cannot be derogated from in any circumstances.53

The constitution of Ethiopia has lack of recognized non-derogable rights. Making these rights
derogable in times of emergency conflict with international standard. At the international level, a
treaty is binding on the state party to the treaty in accordance with the treaty terms. Under the
constitution of Ethiopia, international law ratified by Ethiopia is considered to be part of the law
of the land.54 Ethiopia acceded ICCPR in 11 June 1993.Hence, it is considered to be part of the
law of the land. The constitution makes no reference to the status of customary international law
under domestic law of Ethiopia. Nevertheless, the main Issue here is the non-conformity of the

52
supra note at 3 p.1 art. 18(1)
53
The comment of ICCPR, on elimination of all forms of discrimination
54
Supra note at 3. P. 1 art.9(4)
constitutional provisions with the generally recognized non-derogable rights as are stipulated in
the ICCPR.As said earlier, the constitution of Ethiopia gives international treaties the status of
ordinary laws. The constitution is the supreme of the land: hence any law inconsistent with it is
not binding.55 Nevertheless, since the constitution states that the bill of rights will be interpreted
in a manner conforming to the principles of the UDHR ICCPR and international instruments
adopted by Ethiopia, there may be possibility that these non derogable rights provided in the
constitution will be interpreted according to the international standard. 56 Be it as if any, the
constitution as the supreme law of the land, will prevail over international treaties. The only way
to held Ethiopia accountable to international treaty is therefore, through the term of the treaty
that Ethiopia ratified to be bound.57

3.2.4 right to self determination

The right to self-determination provided under article 39 of the constitution of Ethiopia, goes
further to allowing all nations, nationality and people in Ethiopia, the unconditional right to
secede from the nation. Although the right to self-determination is provided under the ICCPR
and other human rights instruments, the unconditional right to secede is not incorporated in the
conventions. On the basis of a thorough study of the practice of states, special rapporteur gross
spiel has concluded that self determination is a rule of jus cogens,as a peremptory norms of
international law that is binding on all members of the international community and from which
no suspension is allowed. The right to secede is recognized for nation, nationality and people
under the constitution. The constitution defines nation, nationality or people as a group of people
who have a share a large measure of common culture and similar customs, mutual intelligibility
of language, beliefs in common or related identities, a common psychological makeup and who
inhabitants are of identified, predominately contiguous territory. 58Taking into the account the
heterogeneous society of Ethiopia, this definition includes more than the states that make up the
federal government.59The constitution, in addition under article 39 provides for the right of all
nations nationalities and peoples in Ethiopia the right to speak and develop its own language to
express, to develop and to promote its culture and to preserve its history. As provided in article
55
Art.9(1) of the constitution
56
Art.13(2) of the constitution
57
Supra note 49 at p.16
58
Art. 39(5) of the constitution
59
Supra note at 58 Art. 39(4)
93(4) c self-determination is non derogable under the constitution of Ethiopia. 60 Some rights
which are non-derogable in international instruments but not included in the FDRE constitution,
among those rights; the right to life, the right to freedom of thought, conscience and religion…

3.3 Restrictions of rights during the 2016/17 state of emergency

3.3.1 Restrictions on freedom of expression

A .Access to information

The directive restricts;

 The writing or sharing of material on social media, radio, or internet that could create
misunderstanding between people or unrest.61
 Prohibits access to Diaspora television stations and other “similar linked terrorist media”
[US-based Ethiopian Satellite Television (ESAT) and Oromia Media Network (OMN) is
named]62 and enables government to “censor and block” radio and television.63
 Prevents political parties from speaking to local or foreign media that has the potential to
disrupt “the security, sovereignty and the constitutional order. 64“The directive, by obstructing
or limiting platforms for communication and banning the expression of anything that can
“create misunderstanding between people or unrest, “renders virtually all communication as
potentially criminal. The vague and overly-broad ban is ambiguous as to which conduct
could run afoul of the directive. This not only makes the directive highly discretionary and
prone to abusive and partisan implementation, but, as may have been intended, also casts as
ever chilling effect on speech, and promotes self-censorship.

B. Limits on communication to NGO, foreign governments, and other entities

The directive prohibits any communication with undefined “terrorists and anti-peace groups” and
Communications to foreign governments and NGOs that could affect “security, Sovereignty and

60
Supra note at 58 Art.93(4)
61
Dutch farmers on Ethiopian violence; Yahoo News, https://WWW.yahoo.com/news?dutch_farmer
Ethiopian violence accessed on12 December 2017.
62
International Covenant on Civil and Political Rights [ICCPR] adopted 1966G.A.Res.2200A[XXI]21U.N.
Doc A/6316[1966],999U.N.T.S302 entered to force March231976 Ethiopia ratified the ICCPR in 1993
63
Ethiopian state of emergency directive proclamation no 1/2016
64
Supra note at 63 art.28(5)
the constitutional order.65”These sweeping restrictions are both vague and overbroad and curtail
free expression rights well beyond the scope of the situation. “Terrorist and anti-peace groups”
are not defined in the directive.

3.3.2 Restrictions on freedom of assembly and protest

A. Country-wide protest ban

According to the directive “any assembly or protest without authorization from Command post is
prohibited.66”There are also further measures prohibiting protests or activities that could “prevent
education institutions from carrying out their mandate, closing their institutions, or causing any
damage to their infrastructure.67”There are also prohibitions on protests at sporting events and on
public holidays it is prohibited to “show any slogan or agenda unrelated” to that holiday.68

B. Criminalization of forms of protest

The directive prohibits:

 Closing any licensed businesses or shops or government bodies that give Service to the
public,[or] disappearing from business premises for no particular reason.69
 Closing or blocking of any roads,[or] disrupting transport services.70

3.3.3 Arbitrary detention and lack of due process

Although, ensuring the right of habeas corpus and due process is difficult in the time of state of
emergency but the FDRE constitution enshrined both substantive and Procedural laws in article
93 which possibly protects these rights. When we see the due process concept in state of
emergency article 93 (6)(a),it states about responsibility of the government, one of the
responsibility of the state of emergency inquiry board is to make public within one month the
names of all individuals arrested on account of state of emergency together with the reasons for
their arrest. So, we can infer that even if our constitution given long period to take the action but

65
The state of emergency directive,art.16(2)
66
Supra note at 63 art.2
67
supra note at 63 art.2(1),16(1)
68
Ibid
69
Supra note at 63 art.3
70
Supra note at 63 art.5
still the due process is applicable. So, we can understand due process in the sense of this
interpretation in the time of state of emergency. Article93 (6) (b) it states about another
responsibility of the state to inspect and follow up that no measures taking during the state of
emergency is inhuman, we can Infer also even the time of state of emergency arbitrary action is
not allowed if not that much necessary.

Under international law, rights and freedoms may be suspended during state of emergency; for
example, a government can detain persons and hold them without trial. But the peoples have the
rights to freedom from arbitrary deprivation of liberty and to freedom from torture and/or I’ll
treatment. Based on the above premises arbitrary detention is not permitted. But the major target
of state of emergency is making balance the power of the government and the danger of the state.
As a result, exceptionally, arbitrary detention is possible if it necessary but the rights of the
innocent persons take into consideration.

The current state of emergency directives states the following statements about due process of
law and arbitrary detention; those who do not comply with its measures can be arrested without a
“court order” and detained “in a place assigned by the command post until the end of the state of
emergency.71”Government can decide whether to teach the necessary rehabilitation and release
or present them before court when necessary. 72 Prohibitions on torture and arbitrary detention are
not derogable under any condition.73According to General Comment 29, the prohibitions against
taking of hostages, abductions or unacknowledged detention are not subject to derogation.

3.3.4 Freedom of movement of refugees

The directive prohibits individuals “Leaving a refugee camp without the necessary
authorization74. “Under international law, Ethiopia must formally justify any prohibition on free
movement as the least restrictive measure necessary to protect national security, public order, or
public health, which it has not done. 75 The directive and Ethiopia’s National Refugee

71
State of Emergency directive art.6,9
72
Supra note at 71art.4 (1).
73
Supra note at 71 art.7
74
Supra note at 71 art. 28(1)and (2)
75
Supra note at 71 art.28(3)
Proclamation unlawfully limit refugees’ movement and without basis distinguishes between
Ethiopian citizens and foreign nationals. Ethiopia hosts over 650,000 refugees, which is the
largest size in Africa. Most of these refugees are from Somalia, South Sudan, and Eritrea;
however there are no refugee camps under the authority of the UN High Commissioner for
Refugees in Oromia and Amhara, where recent unrest has occurred. 76The country-wide ban on
the freedom of movement of refugees is both overly broad and discriminatory.

CHAPTER FOUR: CONCLUSION AND RECOMMENDATION

4.1 Conclusion

A state of emergency drives from a governmental declaration made in response to an

extraordinary situation posing a fundamental threat to the country. The declaration may suspend
certain normal functions of the government, may alert citizens to alter their normal behavior or
may authorize government agencies to implement emergency preparedness plans as well as to
limit or suspend civil liberties and human rights.

The universal declaration of human rights stipulates that the recognition of inherent dignity and
the equal and inalienable rights of all members of human family is the foundation of freedom,
justice and peace in the world. The international covenant on civil and political rights (ICCPR)
76
ICCPR art.4(2)
affirms that human rights are inviolable, inalienable and inherent in all human beings. In the
wake of Ethiopia's State of Emergency declared on 9 October 2016, During the period of state of
emergency, the Ethiopian government has prohibited many human rights involves; the right to be
free from inhuman treatment, the right to free movement, the right to equality because Ethiopia
missed some human rights especially rights which are given non-derogable status in ratified
treaties i.e. ICCPR.

A state of emergency is classified into dejure and defacto. Dejure state of emergency exists when
states comply with legal requirement for its declaration. If a state exercised its power without
complying with the preconditions prescribed in its constitution or international human right
instruments, there is a defacto state of emergency. A dejure state of emergency becomes defacto
when emergency measures are extended beyond the formal termination of a declared state of
emergency. The siracusa reflect a need for the examination of a particular circumstances
warranting derogation to effectively implement the rule of law. It classifies among other things,
the meaning of public threat affecting the life of the nation, proclamation, notification and
termination of the state of emergency and non derogable rights, on the other hand the Paris
minimum standards are intending to ensure among others this, that even when a government
declares a bona fide state of emergency, the basic human rights continued to be observed and
respected. In addition it calls upon states that are in a state of emergency to be subjected to
judicial review or others review.

In Ethiopia, power to decree a state of emergency of federal level entrusted to council of

ministers and at the state level given to state executive as pursuant to art.93(1)of the constitution.
The grounds to declare such emergency at the federal level are extend invasion, breakdown of
law and order which endangers the constitutional order and which cannot be controlled by the
regular law enforcement agencies and personnel, a national disaster, or an epidemic occur. State
wide state of emergency declared only when the latter two events occurred. The FDRE
constitution empowers different organs of government to address the operation of state of
emergency based on the principle of separation of power as it is proved to be an effective
mechanism for controlling abuse of powers. But most domestic laws contain emergency clause
that provides for derogation of human rights in times of emergency.
In the exercise of state of emergency, there are non-derogable provisions. Accordingly, article 1
(nomenclature of the state, not right), article 18 (prohibition of in human treatment) article 25
(right to equality), and sub articles 1 and 2 of article 39 (right to self-determination including
secession) are not suspended during state of emergency as pursuant to article 93 (4)(c) of FDRE
constitution. When we compare such lists with article 4(2) of the ICCPR non derogable rights,
most rights of ICCPR provisions are not included in the FDRE constitution.

Generally the emergency directive enacted by the command post prohibits the enjoyment of
rights by dividing the under three different sections. Restrictions on freedom of expression,
Access to information and restricting writing or sharing of material on social media, radio, or
internet that could create misunderstanding between people or unrest. The directive prohibits any
communication with undefined “terrorists and anti-peace groups” and Communications to
foreign governments and NGOs that could affect “security, Sovereignty and the constitutional
order. The directive lays down Country-wide protest ban and also further measures prohibiting
protests or activities that could “prevent education institutions from carrying out their mandate,
closing their institutions, or causing any damage to their infrastructure. it allows Arbitrary
detention and create lack of due process. Finally it also have effect on refugees whose fate was
not authorized under the state of emergency under the state of emergency.

4.2 Recommendations

The federal constitution fails to incorporate explicitly human rights which are given non-
derogable status under international agreements i.e. ICCPR and makes its interpretation
ambiguous under its articles 9(4) and 13(2). Especially concerning rights which are
incorporated under article 4 of the ICCPR, the FDRE constitution includes only partially,
so its sound to recommend that the chapter three of the federal constitution needs to have
revision. The gap created under article 13(2) which says the third chapter of the
constitution have to be interpreted in accordance with human right instruments ratified by
Ethiopia, leads to an argument that human rights which are not clearly included in the
constitution can be inferred from those instruments and become applicable domestically.
The Ethiopian government must understand that the Ethiopian nations and nationalities
are committed to continue to demand their basic and fundamental rights. They are
demanding their inalienable rights which include "life, liberty…" and fundamental rights
 which include "freedom of expression and association", rights that are enshrined in the
Ethiopian constitution of 1995 Chapter III articles (13-44).
To bring about a sustainable peace, the Ethiopian government should respect and
implement all domestic, regional and international human rights standards that it signed
and ratified. Especially when it declares the state of emergency it should have to be in
line with the constitution and international instruments.
The constitution gives lesser protection for human rights even when it compares with the
regional constitutions. So the FDRE constitution should give special attention for the
protection of human rights rather than using general terms.

BIBLIOGRAPHY

A. INTERNATIONAL INSTRUMENTS
 American convention on human rights
 International covenant on civil and political rights
 The Paris minimum standards on human rights in state of emergency, (1984)
 The siracusa principle on the limitation and derogation provision in the ICCPR,(1985)
 The universal declaration of human rights(UDHR),(1948)

B. DOMESTIC LEGISLATIONS

 The constitution of the federal democratic republic of Ethiopia, negarit gazette proclamation
no 1/1995.

 The Ethiopian council of constitutional inquiry proclamation no 250/2001.

 The council of ministers emergency directive proclamation no 1/2016.

C. ARTICLES AND BOOKS

 Nj.Ayawickrama: The judicial application of human rights law national regional and
international jurisprudence [2002].
 He zehipeng: Research of fundamental theory on internationalization of human rights, jilin
university, 2004.
 David dyzenhaus: The oxford handbook of comparative constitutional law, edited by Michel
Rosenfeld and András sajó publication date: may 2012 subject: law, comparative law,
constitutional and administrative law.

D. WEBSITES
 Http//www.collins dictionary.com/legalism/state of emergency
 http//www.hrw.org/news/2017/08/07 state of emergency