CHAPTER FIVE

CONSTITUTION, Democracy and Human Rights

5.1. The meaning of constitution & constitutionalism
5.1.1. Meaning of Constitution
It is the fundamental law of a nation or state that :
establishes the institution and system of
government,
defines the scope of governmental
sovereign powers, and
 guarantees individual civil rights and
liberties.
It is collection of principles according to which the powers of
the government, the rights of the governed, and the relations
between the two are adjusted.
Cont…
It is a blue print placed on top the hierarchy of
laws on constitutional governments.
It is the aggregate of laws and customs under
which the life of the state goes on.

 is a body of laws that determines the nature

of the State.

It is a fundamental document according to

which the government of the State functions.
Peculiar Features of a Constitution

• Generality
constitution only states the general legal
principles
It is a guideline for others laws.
Other laws provide the details of the subject
for which they are created.
 Any law that contradicts the constitutional
provision will be null and void.
Cont…
• Permanency
unlike laws constitution is made for undefined
period of time.
serves for a long lap of ages
On the contrary, other laws are tentative, occasional and
in the nature of
temporary existence.

• Supremacy
constitution is a supreme law of the land
A mother of all other laws
No specific law will be valid if it contradicts the
constitution.
the law behind other laws
Cont…
• Codified document
Constitutions are written down; often in a single
document that presents the constitution in a systematic
manner

• Allocation of powers

allocates powers and functions to government and

specifies the rights and duties of governments and
citizens

who can do what, to whom, and under what

circumstances
Major Purposes and Functions of constitution

 It serves as a framework for Government

 It Limits the Powers of Government
 It protects individual and collective rights of
citizens
 It serves as the Supreme (Highest) Law of a
Country
 It provides Government legitimacy/stability
 Constitution Blue Prints for establishing Values
and Goals
 Classification of constitution
Based on form/appearance

 Written versus Unwritten Constitutions

A. Written constitution
It is a documented or codified forms of the constitution
It exists in a single document containing the fundamental
laws and principles.
The majority of states of the world has a written
constitution.
For example ,
 India, Kenya, Ethiopia, USA, Germany, France,
Brazil, Indonesia, Jordan, Venezuela and Nigeria
The advantages of written constitution include:

 It is easily accessible to citizens .

 Citizens can easily learn about their rights and duties .

 It is full of clarity and definiteness

 It has the quality of stability

The disadvantages of written constitution include:

It creates a situation of rigidity

It becomes difficult to change it easily quickly as per
the requirements of time.
a play thing in the hands of the lawyers and the
courts over interpretations
not easily adapted to a new situation or changing
circumstances
B. Unwritten Constitution
It is not written down (compiled )in any single
document.

It has grown up on the basis of custom rather than of

written law.
It consists of customs, conventions, traditions

Very few countries of the world have unwritten form

of constitution

For instance the British and Israel

The Merits of unwritten constitution

 it can be more adopted to a changing circumstances

and new situation

 It is so dynamic that it prevents the chances of popular

uprisings
The disadvantages

it is not easily accessible to the public

 It is difficult to create awareness through education
on the fundamental constitutional rights and duties of
citizens

 It leads to situations of instability (it can be easily

distorted or even changed without the consent of
people)
It leads to the state of confusion
Unwritten constitution may be suitable to a monarchical or
aristocratic system
• Based on complexity of amending process
Rigid and Flexible
Rigid
• amendment is very difficult,
• requiring special procedures to be employed
before any changes can be made.
e.g. USA, Ethiopia, Australia, etc.

 Flexible
Simple amendment procedure
It can be altered or amended without any
special machinery
e.g. British
Based on degree of practice

 Effective Constitution

o Effective realization of the constitution

o Existence of constitutionalism

 Nominal constitution
o Constitutions remains paper value
o Absence of constitutionalism
Based on the structure of the state

 Federal
 distributes power among the different units of a state
administration.

 Unitary
 state power is concentrated in the hands of the
central government.
constitutionalism

It is the limitation of government by law.

It is political governance based on a given constitution

Constitutionalism implies more than having constitution

For constitutionalism to prevail establishing a constitution

alone can not be a guarantee.

It is a necessary foundation of rule of law.

Cont…
 it is the anti-thesis of arbitrary rule

 its opposite is dictatorial government

constitutionalism need two things:

 first and for most there should be
democratic constitution and
 then this democratic constitution must be
implemented
Constitutional Experience of Ethiopia

 The 1931 First Written Constitution

 Emperor Haile Sillassie introduced the first
written constitution on July16, 1931

 The constitution reinforced the traditional position

of the emperor as :

 ‘Siyume Egziabiher, Niguse Negast Za Ethiopia’

which literally means: ‘Elect of God, King of
Kings of Ethiopia’
Cont…
Cont…
2. Externally:
growing interaction between Ethiopia and the
external world, particularly the western European
countries.
The Emperor developed strong aspiration to
view Ethiopia as a modern state to the rest of the
world.
The constitution unequivocally declared that the
sole basis of legitimate authority was the
emperor.
all titles and appointments descended from him
For instance, Article 6 of the constitution
declares that: In the Ethiopian Empire supreme
power rests in hands of the emperor.
However, the 1931 constitution was failed to achieve
external goals & successful in its internal goals.
 Cont…
• The 1931 Constitution consists of the Decree
proclaiming the constitution and seven chapters
divided into 55 articles
• The Ethiopian Empire and the Succession to the Throne.
• Five articles stating that Ethiopia is the domain of the
Emperor, who shall be a descendant "of his Majesty
Haile Selassie I, descendant of King Sahle Selassie,
whose line descends without interruption from the
dynasty of Menelik I, son of King Solomon of
Jerusalem and of the Queen of Ethiopia, known as the
Queen of Sheba.
 The revised constitution of 1955
• The revision of the 1931 constitution was urged by
both internal and external factors.
Internally:
• the 1931 constitution was interrupted by the short
lived Italian occupation over Ethiopia in 1935.
Externally:
• Eritrean federation with Ethiopia

• The new constitution consisted of eight chapters

and 131 articles
• consolidated the absolute power of the emperor.
The 1987 Constitution of People’s Democratic
Republic Ethiopia (PDRE)
February 1974 saw the demise of the oldest
Christian monarchy and replaced by military
Marxism.

The Provisional Military Administrative Council

otherwise known as the Derge replaced the
monarchy
the Derg issued a series of decrees and
proclamations that was used as legal rules until the
adoption of 1987 constitution.

From 1974-1987 was a period of constitutional

vacuum in Ethiopia.
Cont…
 The Derg established the Workers Party of
Ethiopia (WPTE) in 1984, which was the country’s
single party.

The regime took sweeping measures in the

nationalization of rural and urban land, extra
urban houses, private schools and factories.
Cont…
• On February 22, 1987 the constitution was
officially took in to effect as the 1987 People’s
Democratic Republic of Ethiopia (PDRE)
constitution.

• The 1987 constitution consisted of seven chapters

and 119 articles.

• It starts by making “the Working People of

Ethiopia” owners of the Constitution.
Cont…
 The constitution approved that ultimate power
(popular sovereignty) resides in the working
people.

 The constitution coffered the ultimate decision

making power to the National Shengo(the
legislative organ of the state.)
Cont….
 The PDRE constitution was different from the 1931 and
the 1955 imperial constitutions in that :

created the first republic (PDRE).

the involvement of the people in the ratification of

the constitution;

issue of secularism was included in the

constitution for the first time.

The political power and sovereignty were

declared to be the preserve of the working
people of Ethiopia;
Cont…
It contains provisions on democratic and human
rights;
It recognized the different cultural identities and the
equality of Nation and Nationalities;
It introduced a party system(the workers party of
Ethiopia. )
It aimed at the principles of Marxist and Leninist
ideology;

It aimed at giving power to the peoples, so that they

exercise in through Referendum, local and national
assembly.
Practically, however, the 1987 constitution was not
different from the 1931 and 1955 constitutions.
The 1995 Federal Democratic Republic
(FDRE) of
Ethiopia Constitution
Cont…
The 1995 FDRE Constitution was adopted (approved)
by constituent assembly and came into effect in
December 8, 1995.

The constitution of Federal Democratic Republic of

Ethiopia has 11 chapters and 106 articles.

The permeable of the constitution gives the ownership of

the constitution to the ‘Nations, Nationalities and Peoples
of Ethiopia’’.
 The departures of the 1995 FDRE Constitution
from its predecessors
it is different from the previous constitution in the
structure of state, the system of government and human
right provisions.

Structure of state:

 pioneered federal state structure on ethnic lines

Cont…
The human Rights provision:
 Almost 1/3 of the constitutional provisions were
dedicated to the discussion of human rights and
fundamental freedoms in accordance with the
UDHR.
 All federal and state government organs were also
given the responsibility to do their level best towards
respecting these rights.
Cont…
The birth to the two houses parliament:

The 1995 constitution also gave birth to the two

houses parliament .

These Houses are the House of Peoples

Representatives and the House of the Federation.

These two houses were provided with their own

power and responsibilities.
Fundamental Principles of the 1995 FDRE
Constitution

Popular Sovereignty (Article 8)

Supremacy of the Constitution (Article 9)
 The respect of Human Rights (Article 10)
Secularism (Article 11)
Transparency and Accountability of Government
(Article-12)
Various people have different definition of the term. The following are some of these
definitions:
 Democracy is a system of government in which the highest/supreme political power
resides in the hand of people.
 Democracy is a system of government in which the supreme political power resided in
the people.
 Democracy is a form of government which is conduced with the freely given consent of
the people.
Abraham Lincoln, defined democracy as “government of the people”, “By the people” and
“for the people. The “ government of he people ‘ implies that the government is formed
or established by the people, where as ‘a government by the people’ refers to popular
participation i.e. people govern themselves, and finally ‘government for the people’
indicates the government rule in the public interests.
 A- Direct Democracy

Direct democracy can be called pure or participatory form of democracy where ;

people are the ultimate power holders’ these powers are directly exercised by the people

themselves and all people within state have a say in the day-to-day governing processes.
 the will of the people is translated into public policy (law) directly by people themselves.

 all citizens, without any intermediary agents directly exercise their powers by themselves.

 Every citizen represents him/herself to exercise his/her power: no need of any representative

of the citizens in the decision-making processes.

However, it is Not applicable in today's large and complex societies , and there are no

countries which exercise direct democracy at the national level.

o Indirect democracy is also called ‘Representative, Recent or Modern forms
 Here the supreme political power exercised indirectly by peoples representatives
or by elected agents. Here, there are small number of individuals elected
(consented by the will of people) and who should be responsible for and
accountable to the people. They make political decisions, formulate laws and
administer programmers for the good of the people
 This involves a ‘sort of delegation of political authority’; i.e, people represented
in the offices of government (e.g. in parliament) through the authority they
delegated to their representatives in the office to act on their.
A. Procedural Democracy
 What do we mean by procedural democracy?
 Procedural democratic theory sets forth principles that describe how governments
should make decisions. These principles address three distinct questions.
1. Who should participate in decision making?
2. How much should each participant’s vote counts?
3. How many votes are needed to reach a decision?
◦ According to procedural democratic theory, everyone should participate in government decision
making. This means everyone within the boundaries of the political community should be allowed
to participate in its decision making and “everyone” really means every one including the mentally
handicapped, convicted felons, recent immigrant, and children.
◦ According to procedural theory, all votes should be counted equally. This is the principle of
political equality. Notice that universal participation & political equality are two distinct principles.
It is not enough for everyone to participate in a decision; all votes must carry equal weight.
 B. The Substantive view of Democracy
 What are the views of substantive democracy?
◦ According to procedural theory, the principle of responsiveness is absolute. The
government should do what the majority wants, regardless of what it is.
◦ At first this seems a reasonable way to protect the rights of citizens in an indirect
democracy. Substantive democratic theory focuses on the substance of government
policies, not on the procedures followed in making those policies.
◦ It argues that in a democratic government, certain principles must be embodied in
government policies. In defining the principles that underlies democratic government
and the policies of that government most substantive theorist agree in a basic criterion:
Gov’t policies should guarantee civil liberties (for example, freedom or religion and
freedom of expression) and civil rights (for example, protection against discrimination in
employment and housing).
 The overall concept of modern democracy constitutes three key portions: democracy,
constitutionalism, and respect for human rights. Thus, any state or system of government
that miscarries to levy such limits upon itself, that fails to follow the rule of law with
regard to its own procedures, should not be considered democratic.
 Robert Dahl (1982:11) provides the most generally accepted listing of procedural minimal conditions
must be fulfilled for modern political democracy to be existent. The major ones are:
 Control over government decisions about policy is constitutionally vested in elected officials.
 Elected officials are chosen in frequent and fairly conducted elections
 Practically all adults have the right to vote in the election of officials.
 Practically all adults have the right to run for elective offices.
 Citizens have a right to express themselves without the danger of severe punishment on political
matters broadly defined.
 Citizens have a right to seek out alternative sources of information.
 Citizens also have the right to form relatively independent associations or organizations, including
independent political parties and interest groups.
 1) Values of Democracy
 Democracy is more than just a set of specific government institutions; it rests upon a well understood
group of values, attitudes, and practices. Democracies rest upon fundamental principles, not uniform
practices. There are three core values that are central in the discussion of the concept of democracy.
These are values of liberty/freedom, justice and equality.

1) Liberty: This value includes personal freedom, political freedom and economic
freedom
2) Justice: This value of democracy can be understood in three general senses of fairness
3) Equality: Three notions of equality are of particular significance here for our discussion.
These are political equality, social equality and economic equality.
1) Principles of Popular Sovereignty
2) Principles of Constitutional Supremacy
3) Principles of Rule of Law
4) Principles of Secularism
5) Principles of Separation of Powers
6) Principles of Free, Fair and Periodic Election
7) Principles of Majority Rule Minority Right
8) Principles of Multiparty System
 What do you understand by the concept of democratization?
Democracy does not automatically arise out of “primal mud” but needs to be planted and
nourished by years of practice and experience through various levels of democratization
process.
 Democratization is the process of transitions from nondemocratic to democratic regimes.
There are three main elements in democratization such as the removal of the authoritarian
regime, installation of a democratic regime, and the consolidation, or long-term
sustainability of the democratic regime. Thus democratization is refers to;
◦ the institutionalization and routinization of democratic ideals and principles and their
effective functioning.
◦ full-scale transition from authoritarian regime and its replacement by democratically
elected regime
◦ In this sense, democratization represents a true rapture and a political transformation.
1. Political Parties and Their Roles
 They are endemic to democracy, an unavoidable part of democracy
 They provide the proper mode of functioning for the government
 Citizens extend their desires, needs, and problems to the gov’t through the political parties
 They represent an essential tool that acts as a bridge between a society and its gov’t.
In modern democratic political system political parties have the following some functions in
the democratization process;
 They encourage popular interest and participation in politics through formulation of policy.
 encourage their members to stand as candidates for office. The intention of every political party is
seeking and capturing power of elected office
 providing electorates with choices is the other role of political parties in democratization process.
 They provide channels for the leadership and the membership to remain in touch and aware of each
other’s ideas and views.
 Theoretically, the role of free media in processes of democratization is straightforward. The free
media serve as watchdogs, monitoring those in power and provide citizens with the information
they need to be free and self-governing and to hold governments accountable for their actions.
 To better understand how free press enhance democracy, we need to look at various and distinct
role of media, namely, media as source of information, media as a watchdog, media as a civic
forum and media as an agenda setter.
 Media in all countries serves as a watchdog, as a source of information, a civic forum and an
agenda setter.
 What are the roles and influence of Media in contemporary world?
◦ Mass media transmits information to large people through print and broadcast media.

◦ Media enable citizens to have access to information that enable them to check the prevalence of
transparency in their gov’t.
◦ It is widely held that an informed citizen is a responsible citizen. This is to justify the role the mass
media play.
 What is the Meaning of Civic Society?
◦ Civic societies are voluntary, non-profit, non-military, non-gov’tal, autonomous institutions
 Roles of Civil Societies in Democratization Processes
 Civil societies have a potential of playing numerous momentous roles for democratic
development and consolidation. To mention some:
a) limiting the power of the state including challenging the abuses of authority
b) monitoring human rights and strengthening the rule of law
c) monitoring elections and enhancing the overall quality and credibility of the democracy
d) educating citizens about their rights and responsibilities; building a culture of tolerance
and civic involvement
e) providing alternative means, outside the state, for communities to raise their level of
material development
f) opening and pluralizing the flows of information; and building a constituency for
Understanding Human Rights
 What Are Human Rights?

Human rights are internationally agreed values, standards or rules

regulating the conduct of states towards their own citizens and
towards non-citizens.

HRs are rights inherent to all human beings, whatever our

nationality, place of residence, sex, ethnic origin, color, religion,
language, or any other status (UNHRC).

HRs are the basic rights and freedoms that belong to every person
in the world, from birth until death (UN).
 Understanding HRs Cont’d…

 Human rights also refer to the "basic rights and freedoms to

which all humans are entitled.
 Human rights mainly include civil & political rights, such as:

 The right to life and liberty,

 Freedom of expression,
 Equality before the law and
 Economic, social and cultural rights
 Understanding HRs Cont’d…

 Human rights differ from other rights in two respects.

o Firstly, they are characterised by being:

 Inherent in all human beings by virtue of their humanity alone

(they are not to be purchased);

 Inalienable (unable to separate); and

 Equally applicable to all.

o Secondly, the main duties deriving from human rights fall on

states and their authorities or agents, not on individuals.

 Understanding HRs Cont’d…

HRs law places an obligation on states to act in a

particular way and prohibits states from engaging in
specified activities.
Landmarks in Development of Human Rights
 Rights Holders and Duty Bearers

Right holders are those who are entitled to enjoy, possess or

claim a given right.

 Human rights provisions usually started by mentioning the

right holder using terms like every human being, all children,
women, people with disability…….

Duty bearers are those who carry the obligation of promoting,

protecting, and fulfilling these right to the right holders.

There must be always someone you will claim the protection,

provision and fulfillment of your rights from and become
accountable for any failures to do so.
 Categories of Human Rights

1. First generation rights:

o It includes civil and political rights.

o They are the result of liberal political philosophy of
individualism.
o They are primarily the result of the 17th and 18th
century reformist theories associated with the English,
American and French Revolution.
o The realization of these rights require state
abstention rather than state intervention.
 First generation rights Cont’d…

o However, civil and political rights can not be realized by

mere non-interference. For example, the right to security and

the right to fair and public trial necessarily require positive
state action.
 First generation rights Cont’d…

 First-generation rights (Core rights) are rights that are

indispensable for an existence in human dignity
 The right to life
 The right to liberty and security
 The right to equality
 Freedom from racial and other forms of discrimination
 Freedom from slavery or involuntary servitude
 The right to fair and public trial
 The right to privacy
 Freedom of movement …….
 second generation rights Cont’d…

Second Generation rights:

o It include economic, social and cultural rights.

o The origin of this generation of rights is associated
with the socialist movements of the 19th century and
the 1917 Bolshevik Revolution.
o The realization of these rights requires state
intervention.
o These rights are to be implemented progressively
depending on the availability of resources.
 second generation rights Cont’d…

• The right to equality and the principles of non-

discrimination has to be implemented immediately.

• However, the state has not only positive obligation, but also
negative obligation, i.e. the obligation to refrain from
violating these rights, particularly from taking what are
called retrogressive measures.
 second generation rights Cont’d…
.
These includes:

 The right to work and the ‘right in work’

 The right to form/join trade unions
 The right to education
 The right to social security
 The right to health
 The right to adequate standard of living
 The right to participate in cultural life
 Categories of Human Rights….. Cont’d…
Third-Generation rights:

 These rights are include collective or group rights.

 These rights are associated with the emergence of Third World
nationalism and its demand for global redistribution of power, wealth and
other values. It includes:
 The right to self-determination
 The right to development
 The right to peace
 The right to healthy and balanced environment
 The right to humanitarian disaster relief
 The right to one’s own natural resources
 Derogations and Limitations on Human Rights

There are two conditions under which human rights can

be restricted:
A.Limitation and
B. Derogation.

A.Limitations are lawful infringements of rights.

A.Limitations are deviations from the standard manner of

dealing with rights imposed primarily to facilitate
optimal use or exercise of rights in a context of scarce
public resources, space and time.
 Derogations and Limitations …Cont’d…

Limitations can take the form of restrictions and/or

derogation.
Restrictions are acceptable or justifiable limits of
human rights during the normal times.

Restrictions circumscribed the manner, or place, and

the extent to which rights can be enjoyed or exercised in
a particular set of circumstances, often in normal times.

Derogation means a temporary non-application and

suspension of rights by the state in abnormal or
emergency or natural/artificial) situations
 Non-derogability of Human Rights

The concept of non-derogability has been one of the important

aspects of the international human rights laws and treaties.

Some of the important treaties concerning human rights,

including the ICCPR have special provisions explaining
whether its member states can derogate from certain rights
during some exceptional situations.

States believe that some provisions of derogability are

necessary to allow them exercise their sovereign power during
exceptional circumstances for the greater good of their people.
 Non-derogability of Human Rights…. Cont’d…
However, this kind of derogation is not unconditional and
it has its own limits.

There are also certain unique and inherent human rights,

which can never be suspended under any circumstances.

For instance, the ICCPR, which also allows states to

suspend some of the rights under specific conditions,
clearly mentions that some of the articles are non-
derogable.
 Non-derogability of Human Rights…. Cont’d…

They are: right against arbitrary deprivation of life (art. 6);

Freedom from torture or cruel, inhuman and degrading

treatment or punishment; and freedom from medical or
scientific experimentation without consent (art. 7);

Freedom from slavery and servitude (art. 8); freedom from

imprisonment for inability to fulfill a contractual
obligation (art. 11) ……
 Basic features of Human Rights
Human rights are:
 Universal,
 Natural
 Inalienable
 Interrelated, interdependent and indivisible
 Eternal
 Non-discrimination, and
 Not absolute
 Basic features Cont’d
Universal:

 Human being is entitled irrespective of their difference in their

sex, race, religion, nationality, social origin, color etc.
 We have these rights by virtue of being a human.

Inalienable:

 All people everywhere in the world are entitled to human rights.

A person cannot voluntarily give them up. Nor can others take
them away from him or her.
 Basic features Cont’d
Universal:

Human being is entitled irrespective of their difference in

their sex, race, religion, nationality, social origin, color etc.
We have these rights by virtue of being a human.

Inalienable:

All people everywhere in the world are entitled to human

rights. A person cannot voluntarily give them up. Nor can
others take them away from him or her.
 Basic features Cont’d
Indivisible, interrelated, interdependent:

Rights are completely interdependent and depend on each

other for their effectiveness.
Eternal:

As far as human society exists, human rights continue to

exist.
Any change in government and any change in social,
political/economic outlooks do not have any impact on
human rights.
 Basic features Cont’d
Non-discrimination:

 There are no human beings who are more than others. They have
all equal dignity.
 Everyone is entitled to human rights without discrimination.
Not absolute:

 Rights are subjected to limitations/restrictions whenever such is

necessary to protect some legitimate public or individual interest.
For instance, the right to freedom of expression can be restricted
to protect national security, public order, public morals, or the
reputations/rights of others.