4.

Constitutional Experience of Ethiopia

4.1. The pre 1931 and the 1931 Ethiopian constitution

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

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

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

The country is known to have traditional constitutionally relevant documents and

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

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

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

There were also some customary traditional principles that represent constitutional ideas.
For instance the fidelity of the monarch to the church was written no where but the king
showed strong affiliation to the doctrines of the Ethiopian Orthodox Church. The principle
of Imperial omnipotence was also a result of common understanding in the polity that the
king is the most powerful person in the state, which defined the ultimate authority of the
state. The Imperial court system which asserts that the king is the final court of appeal who
gives irreversible decision is also another traditional principle that has constitutional
relevance.

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

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

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

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

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

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

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

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

4.2 The Revised constitution of 1955

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

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

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

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

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

Both documents were far modern and better than the existing traditional 1931 Ethiopian
constitution. They incorporated progressive political elements like democracy and human
right, which were unimagined in the 1931 constitution.
 It was under such exigencies that the introduction of modern and progressive elements
was necessitated and the 1931 constitution was revised. Accordingly the revised 1955
constitution showed a significant departure from the previous one. For instance it has
given a textual recognition for the rights and liberties of citizens even if it was short of
practice.

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

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

With regard to the parliament:

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

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

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

In the executive,

 He was empowered to create government agencies and determine their functions

 He was commander in chief of the armed forces

 He has supreme power to determine on foreign policy issues

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

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

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

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

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

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

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

 It suspended the 1955-revised constitution

 Dissolved the two chamber parliaments

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

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

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

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

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

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

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

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

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

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

4.4. The Transitional Charter of 1991

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

The regime was in lack of the political will to address the different problems existing within the
state especially its resorting towards sheer use of force to solve the nationalities problem was
devastating both for the state and later the regime itself. It was at war in different fronts. The EPLF
was fighting for the independence of Eritrea. TPLF was another armed struggle in the northern
Front and OLF was launching attack from the southern Front. There were also other situations that
put the regime in to a precarious situation like heavy burden of military expenditure, continuing
famine, war, destruction economic mismanagement and wide spread corruption ruined the
economy and the life of the people.
This in effect reduced the regimes legitimacy. Externally the previous socialist states that were
feeding the regime with military hard wares and economic aid are now begun to follow in ward
looking foreign policy that led to the end of the cold war, the era of ideological conflict between the
socialist and capitalist blocs. This led the regime to serious lack of legitimacy internally and external
political bankruptcy. The cumulative effect of these all factors is the collapse of the regime.

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

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

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

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

Article (2) is mainly devoted to recognizing rights of nationalities and peoples of Ethiopia,
Accordingly nationalities were allowed to administer themselves in their own jurisdiction and to be
fairly represented at the level of federal Government. It was also approved that all nationalities can
promote their language, history, culture and preserve their identity. If the above-mentioned rights
are not respected they can ask independence from the Ethiopia state.

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

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

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

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

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

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

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

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

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

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

The proclamation has also done the task of center regional power sharing between the central and
regional governments. The document stated that the national regional governments are
subordinated to the transitional central government. The power sharing formula dictates that
except for some specifically enumerated powers to the central governments all the rest powers
would be left to the regional administration. Accordingly except for some exclusive matters that are
left to central government because of their nature as defining economic policy, printing of money,
foreign policy, administering statewide projects, communication network… all other powers is to be
given to the regional governments. Executive, legislative and judiciary power was also guaranteed
for the regions to enable them exercise their power.
Generally speaking the transitional charter has not mentioned about federal structure and the
transitional government is not a full-fledged federal type. But the provisions on the proclamation
envisages establishment of ethnic based federalism for the future, which really was the case under
the 1995 Ethiopian constitution.

4.5 The 1995 FDRE Constitution

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

The constituent assembly convened for the approval process beginning from 28 October 1994. The
assembly met for two month. It has established committees of different types to deal with various
constitutional issues as government structure, the economy including revenues source, legal
issues and the issues of human rights. For some specific issues that need special professional
consultancy experts were invited to give their view and opinion. At the end of these all processes
the assembly adopted the constitution with only few changes after it was handed to it by the
constitutional commission, a body which was responsible for the preparation of the draft
constitution.

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

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

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

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

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

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