UNIT THREE

CONSTITUTI
ON
 Learning outcomes
2

After the completion of this unit, learners

will be able to:
 Explain the basic principles and
characteristic features of constitution;
 Understand constitutional development in

Ethiopia;
 Identify the features of the FDRE
constitution.
 Reflection
3

 What is constitution?
 What are the fundamental principles

of constitution?
 How do you understand the

development of constitution in
Ethiopia?
 Constitution: Definition
4

 Is the fundamental and the basic law of the state

 Is the supreme law of the country/state
 Is a written instrument enacted by direct action of
the people
 the fundamental powers of the government are
established, limited and defined
 powers are distributed among the several departments
 Constitution is an essential document laying out the
frame work of a nations political, economic and
social structure.
 Classification of constitution
5

 Constitution can be classified as written or unwritten

Written constitution:
 is a formal document that defines:
 the nature of the constitutional settlement,
 the rules that govern the political system and
 the rights of citizens and governments.
 It exists in a single document:
 containing the fundamental laws and principles
 specifying the rights of citizens,
 defines the political structure distribution of power
 Classification of constitution
6

Written constitution - today majority

of states of the world has a written
constitution.
E.g.
India, Kenya, Ethiopia, USA,
Germany, France, Brazil and etc.
 Classification of constitution…
7

Advantages of written constitution

 It is easily accessible to citizens
 Citizens can easily learn about their rights and duties and the
basic laws governing the pattern of political processes of their
nation
 Uncertainties will be avoided or reduced to a minimum
 It is possible to delineate the extent of devolution of power among
different levels of government.
Some disadvantages
 It is not easily adapted to a new situation or changing
circumstances.
 Implementation involves interpretation, which may lead to
disputes between the different branches of government.
 Classification of Constitution…
8

Un-written Constitution…
 the fundamental principles and powers of the
government are not written down in a single
document.
 There is no single document that specifies the rights
and duties of citizens and the powers and authority of
government and its institutions.
 Very few countries of the world have unwritten (un
codified) form of constitution. E.g.
 England, Israel, New Zealand, Oman, Saudi Arabia,
Bhutan
 Classification of constitution…
9

Un-written Constitution…
 It can be more adapted to changing circumstances.
 It is relatively more flexible than a written form of
constitution.
 It may ensure the smooth running of the government in
accordance with the various practices and customs
Disadvantages of Un-written Constitution
 Since it is not compiled in to a single document, it is not
easily accessible.
 It is difficult to create awareness through education on the
fundamental constitutional rights and duties of citizens.
 Classification of constitution…
10

 it can be easily distorted or even changed without

the consent of people.
 it would be difficult to monitor the behaviour of
their governors.
Rigid Versus Flexible Constitutions
 A constitution is considered as rigid when it set up
complex and special amendment procedures.
 Flexible constitution is the constitution which set
up simple amendment procedure and no special
procedure required for amending a constitution.
 Classification of constitution…
11

Federal Versus Unitary Constitution

 Federal Constitution
 Is one that distributes power among the different units of a state
 Purely classify and decentralize power between the central and
regional/local units
 Unitary Constitution
 In unitary constitution, state power is concentrated in the hands
of the central government.
 They can establish or abolish the lower levels of government;
determine their composition and their power and functions.
 In this case, the local governments has no guarantee for their
existence.
 Basic Principles and Characteristic of Constitution
12

1. Constitutionalism
 means limited government and the supremacy of law
 the idea that government should be limited in its
powers
 is political governance based on a given constitution
 these limitations relate to legislative executive and
judicial powers.
 In effective constitutional system, a constitution is
supreme.
 All acts of ministers and public servants are carried in
 Basic Principles ….
13

1. Constitutionalism…
 effective constitutionalism contains a system of
election held frequently
 guarantee of citizens’ fundamental rights
including
 freedom of expression and personal liberty,
 independent judiciary having the power to
control unlawful acts of the legislative and
executive organs
 Basic Principles …
14

1. Constitutionalism…
In general, the concept of constitutionalism implies
 That the power is exercised within the legal
limits and that
 those who exercise power are accountable to law
- Intravires versus ulteravires.
 That power dispersed between the 3 bodies so as
to avoid the abuse of power .
 Generally, constitutionalism implies more than
having a constitution.
 Basic Principles …
15

1. Constitutionalism…
 The only consensual and representative form of

governance in existence to day is democratic

government consisting of:
 multiple political parties,
 fair elections,

 freedom of opinion and expression and

 the rule of law.

 In this way, there is a very important and basic link

between democracy constitutionalism.
 Basic Principles…
16

2. Rule of law
 Means a government of law and not of

men.
 Individuals, persons and government

shall submit to obey and be regulated by

law.
 No arbitrary action by an individual or

group of individuals.
 All are equal in the eyes of the law.
 Basic Principles…
17

2. Rule of Law…
 the regulation of the relationship between the state and
individuals by pre established and knowable laws.
 The core of the principle is that all persons and
authorities with in the state should be bound by and
entitled to the benefits of laws.
 The rule of law requires judicial decisions be made
by a court which is independent of any influence or
pressure by the executive and legislative branches of
government.
 Basic Principles…
18

3. Due process of law

 It was widely accepted in England and originated in
English common law.
 The Magna Charta on agreement signed in 1215 that

defined the rights of English subjects against the king is

an early example a constitutional guarantee of due
process.
 The document includes a clause that declares no free man

shall be sized or imprisoned … except by the lawful

judgment of his peers or by the law of the lancet.
 individuals shall not be deprived of life, liberty or property
without notice and an opportunity to defend themselves
 Basic Principles…
19

3. Due process of law…

 Is the principle that the government must respect

all of the legal rights that are owed to a person

according to the law.
 holds the government obedient to the law of the

land protecting individual persons from the state.

 When a government harms a person without

following the exact course of the law, then that is

a due process violation which offends the rule of
law.
 Basic principles…
20

3. Due process of law…

 The application of constitutional due

process is traditionally divided into the

two categories of substantive due process
and procedural due process.
 Substantive law creates, defines and
regulates rights
 procedural law enforces those rights or
seeks redress for their violation.
 Basic principles…
21

3. Due process of law…

 The core of the idea is that a person should always have notice
and a real chance to present his or her side in a legal dispute
processes.
 No law or government procedure should be arbitrary or
unfair.
 Prohibition of double Jeopardy - double Jeopardy refers to the rule
that a person should not be tried twice for the same crime.
 Habeas corpus - is a judicial order to some one holding a person
to bring that person to court.
 Non retroactivity of law - a criminal act shall be punished by a law
which existed at the place and time of the commission of the crime.
 Basic Principles…
22

4. Separation of Powers
 It is a doctrine derived from Locke and
Montesquieu that power should not be
concentrated but separated.
 The traditional separation is between the

legislative, the executive and the judiciary.

 However, the need to function and coordinate is

achieved by a serious of checks and balance that

also serve to prevent any of the three organs
gaining the dominance.
 Basic Principles…
23

5. Judicial Review
 Is a court’s power to declare a statute/act, an
appeal from an administrative agency or decision
of a higher court’s examination of a lower court’s
decision unconstitutional and to interpret laws.
 It is control by courts over certain decisions

taken by administrative and other decision

making bodies.
 The procedure is most often used in relation to

administrative actions of public bodies.

 Constitutional Development in Ethiopia
24

 Ethiopia has a very little experience with a

written constitution in spite of its long history
of state formation.
 The country had no written law until the mid-

16th century.
 It Introduced a formal written law called Fetha

Negest –law of kings between 15-16th century

which originated in Egypt and was translated
to Arabic and then to Geez.
 Fetha Negest
25

 The Fetha Negest (the law of the king) is a book of law

that has been in use in Christian Ethiopia since at
least the 16th century.
 Not an original Ethiopian composition - derived from
an Arabic work known as Magmu alqawa written in the
year 1238 by the Christian Egyptian jurist Abu Ifada I
llban al Assa a contemporary of Patriarch Cyril III of
Alexanderia (1235 – 43).
 The sources of the first part were the old and the New
Testaments.
 Fetha Negest…
26

 the Fetha Negast was introduced in to

Ethiopia during the reign of Zara Ya eqb.
 An Egyptian native brought the book from

Egypt to Ethiopia at the request and

expense of the emperor.
 Generally the Fetha Negest was a religious

legal provisions than being a definite

constitution.
 Fetha Negest…
27

 It is the law of king.

 It set out the laws and regulations that were used to govern all
activities
 It was used as the sources of constitutional civil and criminal laws.
 It serves as both religious laws and legal provisions of state.
 It was fundamental law upon which the government and the
administration were based and the king vested with absolute power.

 The throne was hereditary, the kind was thought to be

appointed divinely, that is derives his power directly from God.
 It contains the idea of Devine rights of kings.
 Kibre Negest
28

 Kibre Negest was another tradtional

document that has constitutional
relevance.
 Literally, Kibre Negest means “glory of

king”.
 defined who should become king in

Ethiopia i.e., it determine the succession

of the throne in Ethiopia.
 It was the principal source of legitimacy
 Kibre Negest…
29

 It takes the Ethiopian history back to the

Solomonic dynasty where the queen of Sheba
made romantic tripe to King Solomon of Israel
and gave birth to the first Ethiopian King Menelik.
 Hence, 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 sensed as a source of legitimacy for

almost all kings in Ethiopia until the end of Solomonic

dynastic in 1974.
 Ser’ate Mengist
30

 another traditional document used as

constitution by the traditional rulers before
1931.
 some customary traditional principles that

represent constitutional ideas.

 the fidelity/loyalty of the monarch to the

church was written no where but the king

showed strong affiliation to the doctrines
 Ser’ate Mengist…
31

 The principle of imperial power was also a

result of common understanding that the
king is the most powerful person in 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
 Discussion Question
32

 How do you evaluate the

contributions and weaknesses of
these traditional documents in
governing the country and serving
as a main stay to promote modern
constitutions in Ethiopia?
 The First Written Constitution of Ethiopia of 1931
33

The significance of the constitution of 1931

 Ethiopia promulgated its first written
constitution on July 16, 1931 by Emperor
Haile Selassie.
 The era of unwritten form constitution came to

an end with the establishment of this constitution.

 The emperor introduced the constitution for two

main reasons:
 internal factors and
 external factors
 External Factors
34

 growing interaction between Ethiopia with the western

European countries.
 Emperor Haile Selassie developed strong aspiration to
view Ethiopia as a modern state to the rest of the world.
 The Emperor had to convince the world that this country
was modernizing
 Ethiopia was indeed of reflecting a different picture of its
own to the rest of the world, that is it is no more a back
ward state.
 However, the 1931 constitution was failed to achieve
external goals as intended by the Emperor.
 Internal Factors
35

 Internally, the 1931 constitution was intended to

provide a legal frame work for the suppression of
the powerful traditional nobilities to the emperor.
 The Emperor has a deep interest of centralizing the
state power in the internal politics of the country.
 This was effectively done by absolutist nature of the
constitution which was designed to unify and
centralize power.
 the constitution is said to be very successful in
achieving its internal goal.
 Internal Factors…
36

 The constitution formalized centralization of state

power by employing different mechanisms.
 First-centralization of state power through the creation
of new administrative units headed by loyal
appointed chiefs.
 This reduced the power of regional nobles who were
previously so powerful locally,
 there power is transferred to the monarch indirectly
through the appointed local chiefs by the means of the
constitution.
37
Internal
In general, the following internal and
external factors resulted from the 1931
constitution of Ethiopia.
Internal:
 Interest to establish a strong central

government
 Creation of administrative units

 Establishing standing army

 External
38

 Due to the communication with westerners

 To abolish slavery

 To promote modern state

 The constitution was drafted by An Ethiopian-

Bejirond T/Hawaryat who relied on:

 The British, Italian and Japanese constitutions.
 The major influence came from the Mejji
constitution of Japans
 It contains two parts
39

 Specific for the nobility and Bishops

 It grants land holding rights and privileges to them

 Doesn’t govern the Bishops and Nobility

 Enacted for the ordinary citizen

 Its major contents

 The Empire and succession of the throne

 Powers and prerogatives/rights of the Emperor

 It had established the legislature – two chambers

 Chamber of deputies (የሕግ መምሪያ ም/ቤት) chosen by
nobility and local chiefs
 Senate (የሕግ መወሰኛ ም/ቤት) – appointed by his majesty
from the nobility
40

 The Executive
 Without office of the PM-until 1942
 The PM nominated by the Emperor
 The PM accountable to the Emperor
 All the ministers are under the supervision of the
Emperor
 The Judiciary
 Judges appointed by the Emperor
 Two types of courts
 Regular (civil + crime)
 Administrative (civil matters affecting the
government)
 The 1955 Revised Constitution
41

• After a quarter of the century , the 1931 constitution was

revised and replaced by the revised constitution of 1955.
• There were various social and political events that urged
the revision of the 1931 constitution
Internal reasons
• Internally the 1931 constitution was interrupted by the short
Italian occupation over Ethiopia in 1935.
• This event brought a big transformation in the socio-
economic and political system of the country.
• It increased, the country’s access to the out side world and
caused slight diffusion of western ideas into the mind of the
people.
42

 Further more, Italian infrastructures that facilitated communication

between different parts of the country.
 Above all, educated Ethiopians both in the country and abroad forced
the emperor to introduce new reforms .
External reasons
 Externally, the top urgent factor that necessitated a hand to hand
revision of the constitution was the Eritrea Federation with Ethiopia
in 1952.
 Beginning from 1889, Eritrea was under the colonial rule of Italy. It
was the defeat of the Italian forces in the second world war that
brought the Eritrea issue into attention.
 The Federation of Eritrea with Ethiopia led to the addition of two new
documents in to the Ethiopian legal system. These were the federal
act and the Ethiopian constitution.
43

 The revised constitution of the 1955 incorporated

progressive political elements like democracy and
human rights which were unimagined in the 1931
constitution.
 Even though, these provisions were first hand attempts
to the progressive advancement of the political and
legal system of the country, the revised constitution of
the 1955 had reaffirmed the legitimatization of
absolute power of the Emperor in a unitarily
structured state
44

In brief, the reasons for revision were:

 Remains of modernity left by the Italians in 1941.

 Ethiopian membership to the UN-1945.

 Orientation of western ideas which could not be

carried out under the 1931 constitution.

 Federation with Eritrea; which had a bit modern

constitution (liberal).
 Proclamation No. 2/1942 that established
Administrative provinces – Awrajas and Woreda.
45

As per the revised constitution, the Emperor has the

following powers:
 Head of state and government.
 Over sees justice – through Zufan Chilot.
 All laws need to be approved by him.
 Appointment/dismissal of ministers and judge.
 Appointment of members of chambers.
 Dismissing the houses.
 Propose law.
 Commander in chief of the National army.
 Approval of appointment of Bishops and Abuns
 The PDRE Constitution of 1987 – the Derg Period
46

 The establishment of the Derg necessarily brought

about profound changes within Ethiopia society.
 The abolishment of the monarchy and the
introduction of socialism as the guiding ideology
 But the constitution that was established by the Derg
had conferred ultimate state power on the national
shengo and its standing organ, the council of state.
47

The1987 Derg constitution was Russian

influenced and its salient features included:
 Election
 Rights of children and women
 Rights of work and rest
 Legislative National Shengo
 Council of state-standing committee
 Interprets the constitution
 The president holds multifarious powers
 Council of ministers – executive
 Term of office of judges equivalent to that of the
shengo which elected them.
 Post 1994 period
48

The Transitional Period-Charter

 Proclaimed by the peace and Democracy conference
convened in July 1991 at Addis Ababa.
 The charter in its preamble having declared the starting of a
new chapter in Ethiopia history in which freedom, equal
rights and self-determination of all the peoples as the
governing principles of political, economic and social life.
The 1994 constitution
 The 1994 Federal Democratic Republic Constitution has the
following basic features.
 Federalism and accommodation of diversities – Diversity
as a source of sovereignty.
 The Salient Features of the Ethiopian Federal Arrangement
49

 The constitution in place since August

1995 formally introducing a federal form
of government.
 The constitution declares the full and free

exercise of self determination.

 The constitution states that all sovereign

power resides in the nations, Nationalities

and peoples of Ethiopia.
 The Salient Features…
50

 Their sovereignty is expressed through their

democratically elected representatives.
 Federalism aims to accommodate diversity,

of multi ethnic and multi cultural society.

 It is cooperative federalism (mutually
support).
 All the governments are interdependent and

must work together for their citizens.

 Salient Features…
51

Unity and diversity

 Accommodating the diverse interests

and recognition of ethnic groups by

providing the right for self-
determination is the overriding
principle and the most remarkable
feature of the Ethiopian Federal system.
 Salient Features…
52

1. Parliamentary democracy
2. Language policy (each nation has the
right to speak their own language)
 At federal level, Amharic is made the
working language of the state.
 But, member states are allowed by the
constitution to determine their respective
working language by law.
 Salient Features…
53

3. The importance of religion

 State and religion are separate
 There shall be no state religion
4. Fundamental Rights and Freedoms
 One third of the provision of the constitution deals with fundamental
rights and freedoms.
5. Constitutional Interpretation
 The house of federation has the power to interpret the constitution
6. Constitutional Amendment
 Constitutional amendment are then categorized in the two. Ordinary
constitutional amendments require a two thirds majority vote in a joint
meeting of the federal houses as well as a majority vote in two third of
state councils where constitutional amendment deals with fundamental
rights and freedoms enshrined in the constitution.
 Salient Features…
54

7. State of Emergency
 At the federal level, any of the following conditions may trigger
a state of emergency.
 External invasion
 Serious breakdown of law and order
 Natural disaster, or
 Serious out breaks of epidemics
 The council of ministers has the power under such
circumstances to issue a decree proclaiming of a state of
emergency.
8. Ownership of land
9. The right of secession
10. Independence of the judiciary