Unit 2

Unit 2
Constitution
Introduction
In this section the fundamental concepts and principles of con-
stitution in general and the Ethiopian constitution in particular
shall be discussed. This includes an overview of the constitu-
tional development of Ethiopia, features of FDRE constitution,
Federalism and accommodation of diversities, state structure
and division of power. This enables students understand the ba-
sic features of the constitution, the structure of the government
under the federal set up in Ethiopia.
Learning Outcomes
After the completion of this course, the student will be able to:
• Explain the basic principles and characteristic features of con-

stitution
• Understand constitutional development in Ethiopia
• Identify the features of the FDRE constitution
Guiding Questions
• What is a constitution?
• What are the fundamental principles of constitution?
• How do you understand the development of constitution in

Ethiopia?
2.1 Meaning and process of constitution
This is the document which serves as the fundamental law of the

state; that written instrument enacted by direct action of the people
by which the fundamental powers of the government are established,
limited and defined, and by which those powers are distributed
56 ethiopian public administration, governance and ethics
among the several departments for their safe and useful exercise for
the benefit of the body politic.
Constitutional Law designates the law embodied in the Constitu-
tion and the legal principles growing out of the interpretation and
application of its provisions by the courts in specific cases.
It is now clear that the constitution is an essential document, lay-
ing out the framework of a nation’s political, economic and social
structure. How should such an important document come into be-
ing? First, it is necessary to note that not all constitutions are written
documents. The greatest example of a constitution that cannot be
found in a written format is the British constitution, which has how-
ever, existed for many centuries. Modern constitutions though, tend
to be found in written documents.
A framework for a country’s governance and structure cannot be
laid out without deep intellectual and societal agreements on polit-
ical, legal and moral issues. In order to arrive at such agreements,
there must be considerable public debate and discussion prior to
the adoption of any constitution. Such discussion must take into
account that all societies will have conflicting interests. While cer-
tain interests will inevitably predominate, the impartial protection
of rights and liberties should ensure that such dominant interests
do not harm others. Drafting a constitution is therefore very much
related to democracy and the rule of law.
Modern constitutions have tended to be written in the aftermath
of colonial or military repression. They therefore learn from the mis-
takes of history, and write into new constitutions numerous limits
and obligations of government. The 1947 Constitution of India for
instance, paid much attention to the rights of individuals to partic-
ipate in political affairs, as well as the duties of the government in
protecting these rights, in particular by limiting the powers of arrest
and detention. This was a direct consequence of colonial history,
which saw hundreds of political activists taken away and tortured.
2.2 Basic principles and characteristic features of constitution
2.2.1 Constitutionalism
For genuine democracies, constitutions consist of overarching ar-

rangements that determine the political, legal and social structures
by which society is to be governed. Constitutional provisions are
therefore considered to be paramount or fundamental law. All other
laws within a country must abide by and follow the principles of
the constitution. Under these circumstances, if constitutional law it-
self is inadequate, the nature of democracy and rule of law within
a country is affected. This will affect citizens’ human rights, which
can only be realized and protected under a rule of law framework
The structure of modern nations has been shaped with government
being divided into executive, legislative and judicial bodies, with the
commonly accepted notion that these bodies and their powers must
constitution 57
be separated. This is one of the most fundamental tenets of modern

governance, and as such is a key characteristic of any constitution.
Of course, the separation of powers does not mean these bodies func-
tion alone; rather they work interdependently, but maintain their au-
tonomy. Other tenets include the idea of limited government and
the supremacy of law. Together, these can be termed the concept of
constitutionalism.
In other words, constitutionalism is the idea that government
should be limited in its powers and that its authority depends on
its observation of these limitations. In particular, these limitations
relate to legislative, executive and judicial powers. A constitution is
the legal and moral framework setting out these powers and their
limitations. This framework must represent the will of the people,
and should therefore have been arrived at through consensus.
If these are taken to be the basic tenets of constitutionalism, then
not all states with constitutions will have embraced constitutional-
ism; authoritarian governments or military dictatorships do not ful-
fill the tenets of the supremacy of law or the separation of powers.
The judiciary in Cambodia for instance, is highly subordinate to the
executive, blurring boundaries between the two arms of government.
The huge number of disappearances of alleged political activists in
Pakistan is a clear violation of the rule of law. The message sent to
society in these cases is clear: it is not the constitution that reigns
supreme, but those in power. It is therefore important to distinguish
between adopting a constitution and genuine constitutionalism. This
distinction becomes particularly important when constitutions are
adopted to protect the interests of the ruling regime. A constitu-
tion is not merely a document introduced by the state with the title
of ’constitution’. Many authoritarian regimes introduce such doc-
uments to justify arbitrary rule. Thailand for instance, has had a
new constitution virtually every time there is a change of power. A
genuine constitution however, is an attempt to limit and reverse all
forms of arbitrariness.
Authoritarian governments are by their very nature unconstitu-
tional. Such governments think of themselves as above the law, and
therefore see no necessity for the separation of powers or represen-
tative governance. Constitutionalism however, is primarily based on
the notion of people’s sovereignty, which is to be exercised in a lim-
ited manner by a representative government. The only consensual
and representative form of governance in existence today, is demo-
cratic government consisting of multiple political parties, fair elec-
tions, freedom of opinion and expression, and the rule of law. In this
way, there is a very important and basic link between democracy and
constitutionalism.
Just as mere constitutions do not make countries constitutional,
political parties and elections do not make governments democratic.
Several Asian countries have been termed ’illiberal democracies’, for
while they have periodic elections, they are not governed by the rule
of law and do not protect the rights and liberties of their citizens.
India and Sri Lanka are both examples of such countries, where
the politicization of public institutions is common, where politicians
and government officials are deemed above the law and where there
is significant violence against minorities and marginalized groups.
Genuine democracies rest on the sovereignty of the people, not the
rulers. Elected representatives are to exercise authority on behalf of
the people, based on the will of the people. Without genuine democ-
racy, there can be no constitutionalism.
2.2.2 Basic Principles of Constitution

• Rule of Law
• Due Process of Law
• Prohibition of Double Jeopardy
• Habeas corpus
• Non retroactivity of law
• Separation of powers
• Judicial review
Rule of law: Rule of law states that individuals, persons and gov-
ernment shall submit to, obey and be regulated by law, and not arbi-
trary action by an individual or a group of individuals. This principle
argues for a government of law and not of men: Distinguished from
the ’rule of man’ where, for example, in a monarchy, tyrannical or
theocratic form of government, governance and rules of conduct is
set and altered at the discretion of a single person, or a select group of
persons. In a political system which adheres to the paramountancy
of the rule of law, the law is supreme over the acts of the government
and the people. "The core of the ... principle is ... that all persons
and authorities within the state, whether public or private, should
be bound by and entitled to the benefits of laws publicly made ...
and publicly administered in the courts." The phrase "rule of law" is
often found in contemporary constitutions. For example, Canada’s
includes the phrase: "Canada is founded upon principles that recog-
nize the supremacy of God and the rule of law." In Canada and in
the United States, much has been written in constitutional law cases
about the rule of law. It has expanded from three words to include
justification for the following principles.
"Adherence to the rule of law is what guides us in our everyday
social and legal interactions, prevents anarchy, and hold us together
as a people." (Frens); All are equal in the eyes of the law (References
re French Language); Equality in the law as well as before the law
(References re French Language); That people should be ruled by the
law and obey it (Rossiter); The law should be such that people will
be able to be guided by it (Rossiter)
constitution 59
"Constitutionalism and the rule of law are cornerstones of the

Constitution and reflect our countryâĂŹs commitment to an orderly
and civil society in which all are bound by the enduring rules, prin-
ciples, and values of our Constitution as the supreme source of law
and authority." (Lalonde)
"(The rule of law refers to the regulation of the relationship be-
tween the state and individuals by preestablished and knowable laws.
The state, no less than the individuals it governs, must be subject to
and obey the law. The stateâĂŹs obligation to obey the law is cen-
tral to the very existence of the rule of law. Without this obligation,
there would be no enforceable limit on the stateâĂŹs power over
individuals...." (Hitzig)
"The law in our society is supreme. No one no politician no gov-
ernment no judge no union no citizen is above the law. We are all
subject to the law. We do not get to pick and choose the laws we
will observe and obey. Each of us must accept the rule of all laws,
even if we have to hold our noses in complying with some of them."
(HEABC)
"The rule of law requires that (judicial) decisions be made by a
court which is independent of any influence or pressure by the exec-
utive and legislative branches of government" (R v Campbell) "First,
that he rule of law provides that the law is supreme over the acts of
both government and private persons. There is, in short, one law for
all. Second, the rule of law requires the creation and maintenance of
an actual order of positive laws which preserves and embodies the
more general principle of normative order. A third aspect of the rule
of law is that the exercise of all public power must find its ultimate
source in a legal rule. Put another way, the relationship between the
state and the individual must be regulated by law."
Rule of law refers to the supremacy of law: that society is gov-
erned by law and this law applies equally to all persons, including
government and state officials [See Lesson Series 40 for a detailed
study of the rule of law and human rights in Asia]. There are two as-
pects to the relationship between constitutionalism and rule of law:
not only is constitutionalism the institutional basis for rule of law in
any society, it is also safeguarded by the rule of law. Following ba-
sic principles of constitutionalism, common institutional provisions
used to maintain the rule of law include the separation of powers,
judicial review, the prohibition of retroactive legislation and habeas
corpus. The independence of law making bodies is established, as is
independence for judges in articulating and interpreting laws. Gen-
uine constitutionalism therefore provides a minimal guarantee of the
justice of both the content and the form of law.
On the other hand, constitutionalism is safeguarded by the rule of
law. Only when the supremacy of the rule of law is established, can
supremacy of the constitution exist. Constitutionalism additionally
requires effective laws and their enforcement to provide structure to
its framework.
Due process of law: Due process is the principle that the gov-
ernment must respect all of the legal rights that are owed to a per-
son according to the law. Due process holds the government sub-
servient 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.
Due process has also been frequently interpreted as limiting laws
and legal proceedings (see substantive due process), so judges in-
stead of legislators may define and guarantee fundamental fairness,
justice, and liberty. This interpretation has proven controversial, and
is analogous to the concepts of natural justice, and procedural jus-
tice used in various other jurisdictions A fundamental, constitutional
guarantee that all legal proceedings will be fair and that one will be
given notice of the proceedings and an opportunity to be heard be-
fore the government acts to take away one’s life, liberty, or property
.It is also, a constitutional guarantee that a law shall not be unrea-
sonable, Arbitrary, or capricious.
The constitutional guarantee of due process of law, found in the
Fifth and Fourteenth Amendments to the U.S. Constitution, prohibits
all levels of government from arbitrarily or unfairly depriving indi-
viduals of their basic constitutional rights to life, liberty, and prop-
erty. The due process clause of the Fifth Amendment, ratified in 1791,
asserts that no person shall "be deprived of life, liberty, or property,
without due process of law." This amendment restricts the powers
of the federal government and applies only to actions by it. The
Due Process Clause of the Fourteenth Amendment, ratified in 1868,
declares,"[N]or shall any State deprive any person of life, liberty, or
property, without due process of law" (Âğ 1). This clause limits the
powers of the states, rather than those of the federal government.
The Due Process Clause of the Fourteenth Amendment has also
been interpreted by the U.S. Supreme Court in the twentieth cen-
tury to incorporate protections of the Bill of Rights, so that those
protections apply to the states as well as to the federal government.
Thus, the Due Process Clause serves as the means whereby the Bill
of Rights has become binding on state governments as well as on
the federal government. The concept of due process originated in
English Common Law. The rule that individuals shall not be de-
prived of life, liberty, or property without notice and an opportunity
to defend themselves predates written constitutions and was widely
accepted in England. The Magna Charta, an agreement signed in
1215 that defined the rights of English subjects against the king, is an
early example of a constitutional guarantee of due process. That doc-
ument includes a clause that declares, "No free man shall be seized,
or imprisoned âĂe˛ except by the lawful judgment of his peers, or by
the law of the land" (ch. 39). This concept of the law of the land
was later transformed into the phrase "due process of law." By the
seventeenth century, England’s North American colonies were using
the phrase "due process of law" in their statutes.
constitution 61
The application of constitutional due process is traditionally di-

vided into the two categories of Substantive Due Process and proce-
dural due process. These categories are derived from a distinction
that is made between two types of law. Substantive Law creates, de-
fines, and regulates rights, whereas procedural law enforces those
rights or seeks redress for their violation. Thus, in the United States,
substantive due process is concerned with such issues as Freedom
of Speech and privacy, whereas procedural due process is concerned
with provisions such as the right to adequate notice of a lawsuit, the
right to be present during testimony, and the right to an attorney.
Is a constitutional principle that suggests a freedom from arbi-
trary detention? 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 process"; No law or government procedure should be arbi-
trary or unfair ("substantive due process"; Some of the specifics of
due process include the right to a transcript of court proceedings,
the right to question adverse witnesses, etc.
Prohibition of double jeopardy: Is prohibition of a second

prosecution by the same government against the same person for
the same crime (or for a lesser included offense) once the first pros-
ecution is totally finished and decided. As jeopardy is the risk of
conviction or punishment, double jeopardy refers to the rule that a
person should not be tried twice for the same crime. No person shall
be liable to be tried or punished again for an offense for which he
has already been finally convicted or acquitted in accordance with
the criminal law and procedure. (Art 23 of FDRE constitution)
Habeas corpus: Is a judicial order to someone holding a person

to bring that person to court. It is most often used to get a person
out of unlawful imprisonment by forcing the captor and the person
being held to come to court for a decision on the legality of the im-
prisonment or other holding (such as keeping a child when someone
else claims custody).
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. That means, no one shall be held guilty of any criminal of-
fence on account of any act or omission which did not constitute
a criminal offence at the time when it was committed. Nor shall a
heavier penalty be imposed on any person than the one that was ap-
plicable at the time when the criminal offence was committed. Art.
22 constitution of FDRE provides, "Notwithstanding the provisions
of subArticle 1 of this Article, a law promulgated subsequent to the
commission of the offence shall apply if it is advantageous to the
accused or convicted person".
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 LEGISLATURE, the EXEC-

UTIVE and the JUDICIARY. A complete separation is unwieldy. In
the USA, the theory was carried to its most practically perfect. Ex-
ecutive power lies in the President, legislative power in the Congress
and judicial power is in the Supreme Court. However, the need to
function and coordinate is achieved by a series of checks and bal-
ances that also serve to prevent any of the three organs gaining the
ascendancy. The Supreme Court can strike down legislation, but its
members can be impeached or its membership extended with presi-
dential appointments while these appointments themselves may not
be confirmed by the Senate.
Judicial review: Is a court’s power to declare a statute, an appeal

from an administrative agency or decision of a higher court’s exam-
ination of a lower court’s decision unconstitutional and to interpret
laws? It is control by courts over certain decisions taken by admin-
istrative and other decision making bodies. The procedure is most
often used in relation to the control by the courts of the administra-
tive actions of public bodies.
2.3 Constitutional development in Ethiopia before 1994
2.3.1 The Fetha Negast

Ethiopia had no written law until the mid-16th century. Ethiopia
introduced a formal written law called Fetha Nagast law of kings be-
tween 1516th century, which originated in Egypt and was translated
to Arabic and then to Geez.
The Fetha Nagast, (’The Law of the Kings’) is a book of law that
has been in use in Christian Ethiopia since at least the l6th.Century.
In spite of its being an object of considerable pride and venera-
tion by Ethiopians, it is not an original Ethiopian composition, for
it is rather derived from an Arabic work known as MagËĞmuÂŕ
alqawaÂŕnÄśÂŕn, (’Collection of Canons’), written in the year 1238
by the Christian Egyptian Jurist AbuÂŕ lFad.aÂŕâĂŹil Ibn alâĂŸAssa,
a contemporary of Patriarch Cyril III of Alexandria (1235âĂŞ43). Ibn
alâĂŸAssaÂŕlâĂŹs work was divided into two parts, dealing with
religious (22 chs.) and, respectively, secular or civil matters (29 chs.).
The sources of the first part were the Old and the New Tes-
taments, writings of alleged Apostolic origin, Canons of the early
Councils and writings of Church Fathers. In compiling the secular
part, Ibn alâĂŸAssaÂŕl relied mostly on a four book collection of
laws known as Canons of the Kings. The first book of this collection
is the Procheiros nomos, a handbook of Roman Byzantine laws col-
lected and edited between 870 and 878 under the Byzantine Emperor
Basilius I; the second is an Arabic version of the so called Syro Roman
Book of Law; the third has been recognized as an Arabic version of a
handbook of Roman Byzantine laws, i.e. the Ecloga of the Emperors
Leo III and Constantine V (with the "Canons of the Nicean Fathers");
constitution 63
the fourth corresponds to the Precepts of the Old Testament, a com-

pilation of ritual and moral rules from the Pentateuch with Christian
interpolations. Some scholars deem this work to have been compiled
for the use of the Episcopalis audientia, i.e. the court(s) held in Egypt
by Coptic bishops the author himself stating in his introduction that
the Nomo canon was meant to guide the judges in their duty.
The date of the Ethiopic translation is still debated. Yet, accord-
ing to the most authoritative opinion, based on philological evidence,
the Fetha Negast is a creation of 16thcent. GeâĂŸez literature (Guidi
1901:501f.). According to Ethiopian tradition, the Fetha Negast was
introduced into Ethiopia during the reign of as.e ZÃd’râĂŹa YaâĂŸe-
qob: a certain âĂIJP. et.ros AbdÃd’ SÃd’yd [âĂŸAbdassayyid?]," an
Egyptian native, brought the book from Egypt to Ethiopia at the re-
quest and at the expense of the Emperor. As to the translator, at the
end of the Fetha Negast, a note reads: "(the book) was translated
by P. et.ros, the son of AbdÃd’ SaydâĂİ (Guidi 1897: 335; Paulos
Tzadua 1968:319). A passage in the Ethiopic Senodos, referring to
a "Book of the Law of Kings," has prompted the hypothesis that the
Fetha Nagast, was translated before the Senodos (Getatchew Haile
1981:94). As a matter of fact, the same reference to a "Book concern-
ing the Sentences of the KingsâĂİ is already found in the original
section of the Arabic SinuÂŕduÂŕs, circulating as early as between
1229 and 1234, i.e. before the composition of Ibn alâĂŸAssaÂŕlâĂŹs
work (Bausi 1990:36f.).
The difficult style and poor quality of the Geez translation are
partly due to the fact that the translator had to deal with legal con-
cepts and terms to which no Ethiopic correspondence existed.
Admittedly, the Fetha Nagast does not reflect in full the life and
customs of the Ethiopians. It is however undeniable that it was held
in great esteem by local scholars and judges due to its spiritual char-
acter, brought about by continuous references to the Holy Scriptures
and Church Canons, all of which constituted the core of traditional
learning. The book’s prestige was further enhanced by the belief,
common among Ethiopians that it had been written by the 318 Fa-
thers of the Council of Nicaea.
The formal position of the Fetha Nagast, as the supreme ruling
law of Ethiopia is confirmed by many documents. The first one to
bear witness to the application of the Fetha Nagast as law goes back
to the reign of Atse Sars.a Dengel. The Chronicles of Atse Susenyos,
Atse Iyasu II, Atse IyoâĂŹas I, Ats.e Tewodros II and Atse Menilek II
mention the authority of the Fetha Nagast, in civil and penal matters.
More remarkably, in a law issued by Menilek II concerning the
powers and duties of the Minister of Justice, it was expressly pro-
vided that the Fetha Nagast, be the law regulating civil duties of the
Minister. Art. 2 of the regulation established that "the Minister of
Justice must supervise every judgment diligently and conformably
to the expression of Fetha Nagast"
As a mark of importance of the Fetha Nagast, in the legal sys-
tem of Ethiopia, it is worth mentioning some instances related to the
modern legislation of the country. In promulgating Ethiopia’s first

Penal Code in 1930, the legislator clearly stated that his work was
a "revision" of the Fetha Negast "updated" so as to meet the needs
of present times. He emphasized his intention not to depart from
the law written in the Fetha Negast and he made clear references
to the latter in more than 60 Articles. In 1957 a new Penal Code
was issued, prefacing to which Hiayla Sellase I declared: "We have
ensured that their concepts [the concepts elaborated by the Commis-
sion of Codification] adopted as a point of departure the venerable
and wellestablished legal traditions of our Empire as revealed in the
Fetha Negest."
In 1960 the Civil Code of Ethiopia was enacted, to which preface
it was stated that "the Codification Commission has been inspired
in its labours by the genius of Ethiopian legal traditions and institu-
tions as revealed by the ancient and venerable Fetha Neguest." The
archaic tendency to blend secular with religious matters, common to
the Fetha Negast has indeed contributed to a conception of law as
something intrinsically sacred in character, though this mental atti-
tude was primarily derived from Christian principles deeply rooted
in Ethiopia. A work such as the Fetha Negast, full of Biblical and
Christian wisdom as well as of juridical principles of eminent pedi-
gree, was to be much revered by people that boast such a longstand-
ing juristic tradition and an almost innate sense of law. At the same
time, the function of the book as ruling law should not be overes-
timated; in fact, the common everyday life (including dealing with
crimes and judicial procedures) was better regulated by the custom-
ary law. Being a very complicated book, the Fetha Negast was heard
of by many, but really understood only by a few educated clergymen
and traditional scholars.
It was studied in the school of exegesis (Mas.h. af bet), i.e. the tra-
ditional school of the highest level; along with the computus, being
considered the most difficult subject (s. Guidi 1899: xiv). Src.Ignazio
Guidi.
The features of the Fetha Negast are: Its connection with Ortho-
dox Church; it is a law on both religious and secular matters; it in-
cludes both substantive and procedural laws combined; it is known
only to Orthodox Christians; and it establishes the judiciary and ex-
ecutive organs. It continued to serve during Tewodros, Menelik,
Yohannes, and Haile Selassie After 1900. Menelik II was the next
to continue the rectification process through his warlords. He was
successful in incorporating the hitherto independent peripheral com-
munities with different religious, ethnic and political backgrounds.
2.3.2 The move toward modern institution
What is more with the initiation of European way of thinking (like

the establishment of Scholl financial policy, etc) and such European
technology such as telephone railway and road constriction, tradi-
tional sets of right and duties where affected, Particularly as a result
constitution 65
of the emperor’s initiative in favoring and supporting crafts men

traders, and his legislation concerning such classes and groups of
society the traditional culture of looking contemptuously upon these
classes was change.
As a matter of fact up on specific legislation concerning crafts
means and labours the emperor made it crime to insult or in any
way look contemprously upon the craftsmen and traders. Upon the
turn of the 2othc, and with the coming to power of Emperor Haile-
Sellassie an entirely new era in the history of rights and development
constitutional law took palace for the first time a complete system of
constitutional law was established. A written constitution prescribes
a special development and rights of the people. This initial attempt
in modernizing the law of person, rights and development was con-
cerned and was eventually successfully formalized with the regions
of the constitutional provisions in 1955 and the proclamation of Con-
stitution in Ethiopia.
All attempts were made to prescribe for specific rights and devel-
opment after European model. The sets of rights and development
were accepted to apply universally throughout the country. They
superseded all the traditional and cultural sets of rights and devel-
opment. Of course, the application and the familiarization of these
rights development took some time. As a matter of fact, they were
rarely heard outside the major cities and towns of the nation. As a
result, the traditional and the cultural system continued to apply in
the great part of the country. The significant point of this measure
is that a very specific and clear system of rights and development
were proclaimed once and for all. Such action clearly lay that tradi-
tional and cultural values were superseded. This attempt eventually
brought about a modern Legal System in Ethiopia.
The new legal system adopted in Ethiopia was very much com-
parable to European Legal System. In some respects it is even far
advanced than some aspects of European Legal System. In the law
of marriage, more or less a similar development took place. Em-
peror Theodros also attempted to reform some aspects of the law
of marriage particularly by setting himself an example and there by
establishing monogamy as the only types of marriage whereby he
proclaimed a law that other should take his own example and put
aside their concubines and stick to only one wife.
Dr. Fasil Nahoum in his book "Constitution for nation of Na-
tions" stated, "Prior to 1931, Ethiopia had no written constitution.
One should not hasten, though, to make the point that the absence of
a written constitution does not signify the absence of a constitution."
Indeed, Ethiopia had a sophisticated traditional, unwritten constitu-
tion. This unwritten constitution included the ideal of the monarchy,
and an imperial court system involving monarchy, Church, and no-
bility in an intricate power relationship.
The Principles of an unwritten traditional constitution may not
always be susceptible to precise formulation. Yet they emerge most
clearly when an attempt is made to negate them. Two such prin-
ciples of the traditional constitution, for instance, deal with the re-
quirements of the monarch. These are the dynastic claim and the
monarchy’s profession of the Orthodox Christian Faith.
That practically all monarchs since the ’restoration’ or the thir-
teenth century emphatically claimed descent from the "Solomonic
dynasty" reveals the legitimizing and importance of the dynastic
claim. Yustos’ (1714) and Thewodros’ (1868) respective confessions
in time of failure that the one was "a private man, son of a subject,âĂİ
and the other "a man whom God raised from the dust, with no dy-
nastic claim" show the crucial importance of the dynastic claim. That
Sahele Michael (a nobleman with no dynastic claim, who more or
less initiated the Zemene Mesafent) was content to appoint one pup-
pet king after another (each a member of the royal family brought
out from detention for the purpose) when no one could have stopped
him from placing the crown on his own head, also reveals the impor-
tance attached to the dynastic claim. This dynastic claim was finally
incorporated in the written constitution. The Revised Constitution
of 1955 grandiosely announces Haile Selassie’s descent from King
Sahle Selassie, "whose line descends without interruption from the
dynasty of Menelik I, son of the Queen of Ethiopia, the Queen of
Sheba, and King Solomon of Jerusalem."
The other principle in the traditional constitution required abso-
lute fidelity of monarch to Church. Various monarchs demonstrated
to their peril that the requirement was a sine qua non to retention of
the throne. Zedengel’s and Susenios’ open favoring of Portuguese Je-
suit teaching in the seventeenth century cost one his life and the other
his throne. The point was underscored early this century when Lij
Iyasu, Emperor Menelik’s grandson, was accused of turning Moslem
and dethroned. Again, the written constitution would specifically
incorporate a previously unwritten principle and automatically ex-
clude from membership to the Imperial family anyone who is "not
of the Ethiopian Orthodox Faith".
Several other principles of the traditional constitution come to
mind, such as the office of the Abunhead of the Ethiopian Orthodox
Churchbeing filled by a foreigner fiom the Coptic Church of Alexan-
dria, probably as a means of neutralizing the powefil Church.
Male succession to the throne was still another principle of the
traditional constitution. Between the two female figures Yodit and
Zeuditu stretches a millennium. Yodit was a usurper of power of the
traditional constitution and to Empress Zeuditu’s succession was at-
tached the unprecedented requirement of regency. In either case, the
exception proves the rule. Unquestionably, Ethiopia had a complex
traditional constitution. The change in 1931 involved the introduc-
tion not of a constitution, only of a written format for the constitu-
tion. But what important underlying changes did the written con-
stitution bring about in the constitutional process? This will be the
next point of discussion.
constitution 67
2.3.3 The First Written Constitution of Ethiopia of 1931
1 The significance of the introduction of the written constitution has 1

The significance of the constitution of
to be sought in connection with the problems that loomed large then. 1931
In doing so it is useful to separate the internal from the external in-

fluence and weight what the written constitution was intended to
bear. The introduction of the written constitution was the result
of the growing interactions between Ethiopia and Western Europe.
These interactions revealed Ethiopia’s technological backwardness
and whetted its appetite for modernization. Hence the written con-
stitution manifested a policy decision at the highest level for Ethiopia
to become a modern state.
Apart from her own strongly felt need to modernize, Ethiopia had
to convince the world that she was modernizing and taking her place
among the civilized states. This was mainly in order to avert the
possibility of having to defend her sovereignty by force. Only hal-
fadozen years earlier Ethiopia had joined the League of Nations over
objections that she was not ’civilized enough’ In joining the League,
Ethiopia had agreed to accept periodic advice the League offered
regarding the conditions of her subjects and the merchandizing of
firearms. Positively viewed, the League’s concern was the de facto
abolition of slavery and the enhancement of human dignity, as well
as to halt arms accumulation in Africa. However, the arrangement
had gloomy implications and negative side effect. Ethiopia had to
bear the burden of proof that she was becoming ’civilized’.
Some of the major, respected members of the League who now
sat in judgment were also the main participants in the Scramble for
Africa, the ’dark continent’ they were ostensibly and self appointedly
"civilizing." The possibility of some colonial power undertaking such
a mission in Ethiopia was neither secret nor remote. Indeed, Mus-
solini’s invasion of Ethiopia in 1935 revealed the incapacity of the
League to guarantee such sovereignty. The written constitution thus
failed to serve as the seal of approval legitimizing and recognizing
Ethiopia’s sovereignty during the final days of the League Though
neither membership in the League nor the pompous coronation and
the introduction of the written constitution could deter Mussolini’s
invasion, half a decade later Ethiopia’s sovereignty was reinstated.
The launching of the written constitution in 1931 was far more
successful in terms of internal accomplishments. In line with the
centralization efforts initiated after the end of the Zemene Mesafent
and maintained throughout the written constitution formalized the
centralization of government powers. The creation of administrative
units headed by appointed chiefs, the establishment of a standing
army, and the setting up of a ministerial framework were steps in
the process of constitutional centralization.
The introduction of the written constitution was a low keyed in-
direct coup d’etat on the traditional constitution. It was designed to
enhance both change and stability in favor of the monarchy by al-
tering the power structure of the traditional monarchy. It made the
monarch less accessible to the limiting influence of Church and no-

bility. The constitution’s silence regarding the Church effectively re-
moved that venerable institution from the forefront of constitutional
power play, at least on paper. Events following World War I1 fur-
ther resulted in the Ethiopian Orthodox Church for the first time
being headed by an Ethiopian Abun, whose appointment had to be
approved by the Emperor.
A major innovation of the written constitution was the provision
for Deliberative Chambers, which effected a profound change for the
nobility. The Deliberative Chambersnoblemen’s councils in which
the higher nobility sat with tenure served inter alia to disarm the
nobility as powerbroker. Their required presence in the capital and
far away from their home base both helped the monarchy monitor
their movements and wakened them politically.
The written constitution’s introduction thus was a calculated move
to invest leverage in the monarchy. This move constituted the pro-
curement and assimilation of a foreign institution i.e. the written
constitution to serve one’s needs, even if it meant an inversion of the
role of written constitutions. Modeled along the 1898 Meiji constitu-
tion of Japan, its aim was to free the state from the crippling power
struggle of the traditional constitution; thereby making the monar-
chy the superpower vis-a-vis church and nobility, rather than estab-
lishing guaranteed liberties for the people. The written constitution
required the nobility’s allegiance to the monarchy. The nobility was
in return assured its privileges thought the mysterious document
known as the ’unpublished constitutional commentary’ which was
formally signed and sealed in the same manner and on the same day
as the written constitution, but never published. This document was
in every way a royal charter guaranteeing rights and privileges to
the nobility. Its importance and relationship to the written constitu-
tion, however, remains obscure, in spite of the fact that it contained
the ’Law of the Imperial House’ The major innovation of the writ-
ten constitution was the creation of the Deliberative Chambers. A
third of the constitutional provisions dealt with these chambers of an
embryonic parliament. The Upper Chamber, made of all the impor-
tant noblemen, was the more important. The members of the Lower
Chamber also had to be from the nobility and were elected through
an indirect voting system in which only the nobility participated.
The constitution anticipated this state of affairs to continue "un-
til the people are in a position to elect themselves". The primary
function of the Deliberative Chambers was advisory. The Chambers
could neither refuse to deliberate on a proposal sent to them nor
initiate legislation themselves. They could also not question the ex-
ecutive without the Emperor’s consent. Unimpressive as the powers
of the Deliberative Chambers appear, these institutions served sev-
eral important functions. They were a first timed step toward par-
ticipatory government albeit the majority of those governed had no
hand in it. They also served as a communication bridge between
the government and the people. They were useful and sounding
constitution 69
boards for government proposals. Another innovation of the written

constitution was the concept of a fixed annual budget for govern-
ment. Traditionally, authorization on expenditure was carried out
through the Mazeja a written order by the Minister of Pen on the Em-
peror’s instructions. During scheduled audiences with the Emperor,
known as Akabe saat, individual ministers presented their requests.
The Mazeja would then authorize the transfer of government funds
from the Ministry of Finance to respective ministries. No overall
balancesheet had ever been prepared before the written constitution,
which now expected a Ministry of finance budget proposal to be de-
liberated upon by the Chambers and submitted to the Emperor for
approval. The budget concept never became viable during the life-
time of the constitution of 1931 and remained an embarrassing paper
model.
On the executive side, the written constitution institutionalized
the ministerial system.The constitution mentioned both individual
and collective ministerial responsibilities to the Emperor. The collec-
tive responsibility was a novel idea and the council of ministers was
in the making. Still there was no prime minister, the "Keeper of the
Seal" or simply Minister of Pen acted as first among equals. Where
all power emanates from the sovereign, it is an inevitable, "logical"
outcome of the centralization of power that the one closest to the
sovereign becomes the most influential.
In the judicial field, the devolution of monarchical power was not
a new concept. The written constitution recognized and empha-
sized the institutional character of the courts of law. It provided
for two separate systems of courts regular courts and administra-
tive tribunals. The ordinary courts would handle civil and criminal
cases. Civil cases affecting government, however, would be "with-
drawn from the jurisdiction" of ordinary courts and placed in admin-
istrative tribunals. At the apex of the court system was the Emperors
Chilot, where cases could be reviewed by the monarch in person
when necessary and as much on the basis of equity as law. But the
written constitution was the vanguard for a regime of jus scriptum
(Written law).
Hitherto a variety of religious and customary legal systems had
served the needs of the ethnic and religious communities. Judges
rendered decisions largely based on their own individual notions of
justice and equity. This was especially true where cases involved sev-
eral ethnic and religious groups. Conflict of laws problems had made
the discretion of the judges absolute. Unity and internal conformity
in the legal system had been out of the question. The introduction of
the written Constitution heralded an era of written law and "justice
in conformity with law."
Written laws were not novel. The Axumites, who had their own
script, had tax laws inscribed on tablets. With the translation of the
Bible into Ge’ez in the sixth century, that book served inter alia as a
generalized law book in Christian communities. The Koran was sim-
ilarly employed in Moslem communities. The Fetha Negest, that so-
cial and juridical monument, had graphically existed since the four-
teenth century. It was a comprehensive religious and temporal codex
symbolizing law and justice, rather than a code daily employed by
judges in the administration of justice. Like the "natural law" of me-
dieval European jurists, the importance of the Fetha Negest lay not in
its content, but in its dignity and symbolism. In contrast, the written
Constitution, though not applicable every day in court, was a first
step in a regime of written law.
Since Tewodros’ time, imperial proclamations including Menelik’s
ministerial innovation and Ras Tafari’s emancipation of slaves had
been issued. Since the first printing press did not arrive in Ethiopia
until the twentieth century, documents had to be copied by hand.
Thus, there was no tradition of issuing copies by hand, nor a tradi-
tion of issuing copies of legal text for use in courts. The introduction
of the written Constitution was, therefore, a first step in the direction
of a systematic, unified regime of written law. A Penal Code, a Na-
tionally Law, and a Company Law soon followed. Texts of other laws
also appeared in Berhanenna Selam, the official report. In 1942 the
Negarit Gazeta began appearing monthly, carrying texts of various
legal prescriptions.
Generally, the kings enjoyed absolute power before the 1931 Con-
stitution. They were considered as nominated from God and were
owners of everything in the Country. Though these phenomena are
reflected in the first written constitution too, the following factors re-
sulted from the 1931 Constitution of Ethiopia: internal and external
• Internal:
– Interest to establish a strong Central government

– to create administrative units
– to establish standing army
– to weaken the church and nobility
• External:
– Due to the communication with Westerners

– to abolish slavery
– to distribute and limit powers
– The Constitution was drafted by An Ethiopian Bejirond T/Hawaryat
– He used these sources:
– The British, Italian and Japanese Constitutions
– The major influence came from the Meiji Constitution of Japan
It contains two parts:
1. Specific for the Nobility and Bishops
• It grants land holding rights and privileges to them

• Doesn’t govern the Bishops and Nobility
constitution 71
• Enacted for the ordinary citizen
2. Its major Contents:
• The Empire and Succession to the throne

• Powers and prerogatives of the Emperor
It has established:
1. The legislature two chambers
• Chamber of Deputies (Chosen by nobility and local chiefs )

• Senate (appointed by His Majesty from the nobility)
• one can’t be a member of both Neither can initiate nor refuse a
law proposed by the Emperor
• Neither can initiate nor refuse a law proposed by the Emperor
2. 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 supervision of the Emperor
3. The Judiciary:
• Judges appointed by the Emperor

• Two types of Courts
• Regular (civil + crime)
• Administrative (civil matters affecting the government)
• Emperor’s Chilot the last appellate court on all matters
2.3.4 The 1955 Revised Constitution

The First written Constitution was superseded by the revised Consti-
tution. In contrast to the introduction of the written Constitution in
1931, the grant of the Revised Constitution of 1955 was not surprising
n that quarter century the social process had altered to such an extent
that the constitutional framework provided by the written Constitu-
tion was visibly inadequate. The World War had affected Ethiopia
tremendously. The short Italian occupation had created closer ties
with the courtside world. The war had enhanced the thoughts of the
people. The Italians left in their wake the idea of a modern state.
In 1945 Ethiopia became a founding member of the United Na-
tions Organization. Political alliances brought Western idea and so-
cioeconomic changes. Then in 1952 came the Eritrea Federation. The
General Assembly of the United Nations passed a resolution, the
Federal Act, by which Eritrea, as an autonomous unit, came under
the sovereignty of the Ethiopian crown. This necessitated incorpo-
ration of the Federal Act into the Ethiopian constitutional system
and the ratification of the Eritrea constitution by the newly created

Eritrean Representative Assembly and the Emperor.
The Written Constitution on the one hand and the Federal Act
and Eritrean Constitution on the other were poles apart in their ide-
ologies and conceptions of government. The jurisprudential mar-
riage was between unequal. The Federal Act was modeled after the
Declaration of Human Rights and contained progressive Concepts.
The Eritrean Constitution also incorporated enlightened values of an
ideal democratic society. The Ethiopian constitutional process, how-
ever, remained that of the 1931 Constitution. The legal engineering
necessary to make the two systems function was an acrobatic feat.
The Revised Constitution thus took over. What is suppressing is that
the Constitutional reform was not undertaken earlier.
The Revised constitution incorporated many of the progressive
concepts introduced in the Federal Act, but without mentioning the
Federation. It also retained some of the principles of the 1931 Con-
stitution. Thought the latter was taken as the point of departure for
the Revised Constitution, in some important respects the Revised
Constitution bore little resemblance to its predecessor.
The Underlying themes of a monarchy whose powers are legit-
imized by a written constitution were reaffirmed. The revised con-
stitution devoted its first two chapters to the monarchy. The first
dealt with the pomp and the glory of the institution. Article four,
as a masterpiece summary, dealt with dynastic heritage and impe-
rial consecration, thereby sealing the inviolability of the emperor’s
dignity, the sacredness of his personality, and the indisputability of
his powers. Chapter one also dealt with the rules of "Solomonic"
succession to the throne, whereas in chapter two the powers and
prerogatives of the emperor were spelled out. These were extensive
provisions making the emperor the focal point of ultimate govern-
ment power. The powers the emperor wielded under the revised
constitution included policy making, governmental organization and
appointments, as well as legislative and military powers. Through
these powers the emperor directed the constitutional process.
He had the power to create government agencies and to determine
their function. To this effect imperial orders appeared in the Negarit
Gazeta establishing and organizing ministries and other agencies.
His appointment powers extended through the various branches of
government. The power to appoint and dismiss the prime minister
and other ministers, judges, and diplomats at will rested with the
emperor. All members of the senate, in the two chamber parliament,
were also appointed at his pleasure. With respect to parliament,
the emperor had the power to dissolve either or both houses. He
was also provided with co legislative functions. Besides members
of parliament, only the emperor had the right to submit proposals;
and proposals approved by both houses of parliament were not law
unless and until signed by him. The emperor thus had veto power on
legislation, and when parliament was not in session the government
issued imperial decrees.
constitution 73
The emperor was not only commander in chief of the armed forces
but was constitutionally empowered to meet threats to the defense or
integrity of the empire by declaring state of siege, martial law, or na-
tional security and taking the necessary measures. The emperor ex-
ercised supreme direction in the foreign relations of the empire and
alone conferred and withdrew titles of prince and other honors and
instituted new orders. The revised constitution extended the powers
of the emperor to the Church as well. Except in the area of spiri-
tual administration, all church decrees, edicts, and regulations were
promulgated by the emperor, who also had the right to approve the
election and appointment of bishops and the Abun. Indeed the pow-
ers of the emperor were extensive enough to make him an absolute
monarch.
Below this umbrella of absolutism, however, the various branches
of government played their roles and over the decades slowly inched
up towards asserting their institutional power. In addition to the in-
troduction of new constitutionally significant concepts through the
Federal Act of 1952, the attempted coup dâĂŹÃl’tat of 1961 that
questioned the value of the monarchy and revealed popular dissat-
isfaction with the pace of modernization and development, and the
establishment of the Organization of AfricanUnity headquartered in
Addis Ababa in 1963, all pressured government to go into higher
gear and emerge out of feudalism. Various halfhearted attempts
were made to democratize the constitutional system, but on a two
steps forward one step back manner. The destruction of the fed-
eration in 1962 was one more additional measure of centralization.
The indifferent approach to the exercise of fundamental rights and
liberties enshrined in the revised constitution was also telling.
On the other hand, the process of active codification in the 60s
was encouraging. The 1966 imperial order defining the powers and
duties of ministers was described by the emperor as the most signif-
icant political development of recent years. This order had provided
for the first time for the prime minister to nominate ministerial can-
didates to the emperor for approval, instead of the emperor doing it
on his own, thereby giving the prime minister greater control of his
cabinet than previously. Parliament, particularly the lower chamber,
was also becoming more active and vocal, using their questioning
power of the executive to raise budgetary and other issues. Although
there were no political parties and members of the lower house ran
on an individual basis, outside parliament various pressure groups
were operating. "Land to the tiller", was a standard motto of student
demonstrations, attempting a direct hit at Feudalism. Armed insur-
gents were operating in Eritrea, and the Ethio-Somali border contin-
ually showed ominous signs of restlessness. Strikes by teachers, taxi
drivers, and finally army unit revolted on one pretext or on other
further bit into the system. In 1973 the emperor appointed a 30man
constitutional commission to address the major issues. A draft con-
stitution was worked out establishing a constitutional monarchy, but
events taking place made the changes too little, too late. In Septem-
ber 1974 the emperor was deposed, the Revised Constitution sus-
pended, and a military junta of junior officers known as the Derg
emerged, establishing itself as the provisional Military Government.
In brief the reasons for revision were:
• Remains of modernity left by the Italians 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 (Lib-

eral)
• Proclamation No. 2/1942 that established Administrative provinces

Awrajas and Woredas
As per the Revised Constitution, the Emperor had the following

powers:
• Head of state and government.
• Oversees justice through "Zufan Chilot"
• All laws need to be approved by him.
• Appointment/dismissal of ministers and judges.
• Appointment of members of chambers.
• Dismissing the houses.
• Propose laws.
• Commander in chief of the National Army
• Approval of appointment of Bishops and Abuns
2.3.5 The PDRE Constitution of 1987 The Dergue Period:

Some Distinguishing Features of the Constitution of 1987 The es-
tablishment of the Derg necessarily brought about profound social
changes within Ethiopian society. The abolishment of the monarchy
and the introduction of socialism as the guiding ideology of the mili-
tary regime, as well as its international alignment with communism,
meant facing a totally new direction. What originally started as a
peaceful takeover soon turned bloody. Apart from a major was with
Somalia, on Ethiopian soil, which resulted in pushing Mogadishu’s
soldiers back to the borders, internal violence continued unabated.
The nationalization of rural and urban land, extra houses, private
schools, industries, and commercial farms was nothing short of a
declaration of war on the nobility at large and the urbanite upper
middle class. The turning out by force of previous owners displaced
a lot of people and resulted in bloody confrontations. But the most
atrocious violent confrontations were not between the political right
constitution 75
and political left but among the various factions of the political left.
University and secondary school students took the brunt of this vio-
lence as they found themselves in the vanguard of the demand for a
civilian government. The military regime had no intention of giving
in to such demands and unleashed the red terror that resulted in the
maiming, death, and disappearance of untold numbers.
The communist ideology the Derg articulated, with its promotion
of godlessness and its "demotion" of religion (as the opiate of the
people) naturally did not sit well with the leadership and the faith-
fulness of the various religions. The confrontation was also with the
West oriented national intelligentsia as well as with Western coun-
tries in general. At the same time, but on a different plane altogether,
the armed struggle for the independence of Eritrea was gaining mo-
mentum. In various parts of the country, but initially particularly
in Tigray, violent confrontations based on popular resistance to the
Derg were taking place with greater frequency and heightened im-
pact.
Economically, the country was in a shambles, due to misguided
agricultural policy that regulated prices and hindered production.
Natural and manmade disasters, lack of cooperation from Western
financial institutions and governments, and the inability of socialist
countries to provide the necessary technological and financial sup-
port (save in military hardware and military advice) did not help the
situation.
The setting up of the Workers Party of Ethiopia (WPE) as the sole
political party in the country obviously did not serve the democrati-
zation process and further forced the opposition to go underground
and continue armed resistance. The establishment of the People’s
Democratic Republic of Ethiopia in which the workers’ party was
the sole political operator even thought legitimatized through the
promulgation of a new constitution in 1987, could not heal Ethiopia’s
gaping wounds, political or economic. The countrywide grass roots
level discussion on the provisions of the draft constitution, even
though subdued, was novel and encouraging; and so was the empha-
sis on human rights in the text of the constitution. The elections that
ensured, however, resulted only in a rubberstamp national Shengo
that was not equal to the task at hand. The constitution of the Peo-
ple’s Democratic Republic of Ethiopia had conferred ultimate state
power on the national Shengo and its standing organ, the Council of
State; yet, simultaneously, the central communities and the polit bu-
reau of the party had ultimate decision making power parallel to the
government institutions. At the top, government and party offices
converged, with the same person wearing two or more hats. At the
apex, the secretary general of the sole party was also the executive
president of the republic, the chairman of the national Shengo, and
the commander in chief of the armed forces. The setup is reminiscent
of the monarchical absolutism of Ethiopian history during both the
unwritten and written constitutional epochs, in spite of the empire
having changed into a republic and the emperor into a president.
This constitution of PDRE of 1987 was Russian influenced and its

Salient features were:
• Election
• right of children and women
• right of work and rest
• Legislative National Shengo
• can amend the Constitution
• council of state standing committee
• interprets the constitution
• The president holds multifarious powers.
• Council of Minister executive
• Procuracy General
• Term of office of judges that of the Shengo which elected them
2.4 Post 1994: The FDRE Constitution of 1994
2.4.1 Some distinguishing features of the charter of the transitional

period
The Transitional Period Charter of Ethiopia proclaimed by the Peace
and Democracy Conference convened on July 15 1991 in Addis Ababa.
The Charter in its preamble having declared the "starting [of] a new
chapter in Ethiopian history in which freedom, equal rights and self-
determination of all the peoples shall be the governing principles of
political, economic and social life, "went on in Article 2, to affirm
the right of nations, nationalities, and peoples to self-determination.
To this effect, Article 2(b) guaranteed "each nation, nationality and
people the right to administer its own affairs within its own defined
territory and effectively participate in the central government on the
basis of freedom, and fair and proper representation." With respect
to the central government, the Charter, having stated that the Transi-
tional Government shall exercise all legal and political responsibility
for the governance of Ethiopia, proceeded to establish the Council of
Representatives, which exercised legislative functions and oversaw
the work of the Council Ministers. Further legislation of the Council
of Representatives, namely Proclamations 1 and 2 of 1991 provided
in detail for the powers and functions of the president of the Tran-
sitional Government as well as the Prime Minister and Council of
Ministers all of these institutions having been already established by
the Charter.
The establishment of National Regional Self Government was pro-
vided for I Proclamation 7 of 1991 (by the same title.) Article 3 of the
proclamations enumerated 63 identified nations, nationalities, and
constitution 77
peoples and stabled 14 regions. Eight of these regions were compos-

ite regions embracing from 3 up to 13 identified nations, nationali-
ties and peoples. Four regions had one identified nation each and
greater Addis Ababa with its identified nation each and greater Ad-
dis Ababa with its amalgam of urban and rural peoples formed a
region by itself.
The proclamation provided for 48 of the identified nations, na-
tionalities, and peoples to be able to establish their own National
Regional Self Governments at the Wereda level or above. Moreover,
it was provided that these Self Governments of adjacent nations, na-
tionalities, and peoples may, by agreement, jointly establish a larger
Regional Self Government within any of the 14 regions specified. The
remaining 17 nationalities and peoples, having small size population,
and therefore, less than 50
It is clear that, in the charter, ultimate power rested with the cen-
tral government. In the language of the Charger, "The transitional
Government shall exercise all legal and political power for the gov-
ernance of Ethiopia. In no unequivocal manner the proclamation
also stated, "National/Regional Transitional Self Governments are,
in every respect, entities subordinate to the Central Transitional Gov-
ernment. Moreover, the National Regional Council which was "the
repository of overall political power regarding the internal affairs of
the region was made "accountable to the people which elected it and
to the Council of Representatives of the Central Transitional Govern-
ment.
A somewhat ambiguous and less precise language was introduced
in Art. 9(1) of the Proclamation, which seemed to indicate that ex-
cept for specifically enumerated powers of the Central Government,
all other powers including residual powers, belonged to the National
/Regional Self Governments. Article 9(1) stated, "National V Re-
gional."
Transitional Self Governments shall have legislative, executive and
judicial powers in respect of all matters within their geographical ar-
eas except . . . "This, however, was immediately negated by not
only specifying nine major areas "reserved for the Central Transi-
tional Government because of their nature", and including in them
broad concepts such as "economic policy," "establishing and "build-
ing and administering major communications networks" but encas-
ing the whole enumerative section by the phrase "such matter as . .
. and the like," which indicates that such enumeration was not ex-
haustive. To add to it, it was immediately provided by the proclama-
tion that powers and responsibilities of ministries, authorities, and
commissions of the central government were to be proposed by the
Council of Ministers and decided upon by the Council of Represen-
tatives of the Central Government. This provision provided that the
proposal of the council of Ministers be consistent with the posers and
duties of National Regional Self Governments. But the ultimate ar-
biter was the Council of representatives of the Central Government.
2.4.2 Conceptual frame work, structure and peculiar development

of the constitution of 1994
The most important thing to note about the Ethiopian constitution

of 1994 is that it is clearly a departure from all previous Ethiopian
constitution. The state it envisages and the government established
are different both inform and content. Unlike the old monarchical
constitution that familiar landmarks in Ethiopian history, this consti-
tution provides for a republican form of government.
To be sure it is the second republican constitution that has been
promulgated; but while the former one provided for a single party
system and a unitary government, the 1994 constitution provides for
a federal multiparty system of government. That the name of the
state is the Federal Democratic Republic of Ethiopia is no coinci-
dence.
The clear cut departure the constitution of 1994 makes is based
on the evaluation of previous constitution experiences. It is based
on the understanding that the previous constitution orders, whether
of a feudal monarchical nature of a Marxist dictatorial types, have
failed to deliver what the society expected of them. What the society
expected ( and still expects), put in nutshell, is a constitution order
that, without sacrificing the fundamental values of the society, pro-
pels it towards a sustainable optical values of the society, propels it
towards a sustainable political and socioeconomic development I an
orderly and peaceful fashion.
Worldwide, the pace of change since the industrial revolution has
been accelerating and Ethiopia could not remain unaffected. Already
a big colonial battle was fought victoriously at the end of the last cen-
tury. A railway line was extended from the sea inland up to the capi-
tal in the early years of the new century and this brought in not only
new goods but also new ideas. The work of christen missionaries in
education through the decade, together with the government’s own
efforts, helped create a new intellectual modernizing elite. The Sec-
ond World War and the United Nations blessed Eritrean unification
at midcentury helped shake the traditional form of mind.
Ethiopian’s participation in the United Nations force in Korea and
later in the former. Congo played its part in the awakening within the
armed forces. And finally the attempted coup dâĂŹÃl’tat paved the
way for a final and decisive confrontation with a late modernizing
feudal monarchy.
With the drought as the last straw to break the camel’s back, the
monarchy was swept away in 1974. In its eagerness for a short-
cut to socioeconomic development Ethiopian, under the leadership
of the military junta known vigorous player and become the Soviet
Union’s satellite. The Marxist blue print for overall development re-
ceived with instant friends and foes internally and internationally
initially crated a new sense of direction and the feeling that the so-
ciety was now moving away from centuries old stagnation. And
indeed move it did. But was it in the intended direction? Less than
constitution 79
two deceased later, the economy was in even greater shambles, the
international soviet system had collapsed, and the society found it-
self polarized and in traumatic civil war. That the constitution of
the Federal Democracy Republic of 1994 is a new beginning is not
surprising. The question is, has Ethiopia chosen wisely this time in
order achieve the goals it has set for itself, The time has not yet come
to fully answer the question. What can be answered what Ethiopia
has chosen and what the trend seems to be that is why we will now
focus on the salient features of the constitution of 1994.
2.4.3 Peculiar development of the constitution of 1994

1. Federalism and accommodation of diversities - Diversity as a
Source of Sovereignty
There are more that eighty ethnic groups in Ethiopia. For a multi-
Âňcultural country like Ethiopia, therefore, where multiple ethnic
groups want to keep their language, culture, and identity, federal-
ism is often the best available form of government. Federalism in
Ethiopia is a power sharing arrangement that seeks to create sta-
bility by constitutionally dividing political power among various
ethnic groups, allowing different ethnic groups to create a strong
federal state without losing their identity or compromising their
interests.
Looking to the past and analyzing the current realities of Ethiopia,
it can be argued that there is no alternative to a federal system of
some sort for Ethiopia, if it is to have a future as a multiethnic state
with democratic institutions. As the history of Ethiopia shows,
the Ethiopian federal experience in many ways is the result of the
quest of the people for self-determination.
2. The Salient Features of the Ethiopian Federal Arrangement

The Constitution of the Federal Democratic Republic of Ethiopia
has been in place since August 1995, formally introducing a fed-
eral form of government. The Constitution declares the full and
free exercise of self-determination. The aim of this, according to
the preamble of the Constitution, is to show that "our destiny can
be best served by rectifying historically unjust relationships".
From this one can understand that the Constitution has acknowl-
edged past oppression and exploitation of ethnic groups. Now,
the recognition of these groups forms the basis for building a
federal and democratic state. The Constitution states that "all
sovereign power resides in the Nations, Nationalities and Peoples
of Ethiopia". It further assures that even the Constitution itself is
"an expression of their sovereignty". Moreover, their sovereignty
is expressed through their democratically elected representatives.
Therefore, in the Ethiopian federal system, sovereignty lies with
the constituent ethnic groups themselves.
Importantly, if the federal government abuses the rights of the
various ethnic groups, they are entitled to reassert their powers
of sovereignty in the form of âĂIJan unconditional right to self-

determination, including the right to secessionâĂİ (Article 39).
Consent of each nation, nationality, and people, therefore, lies at
the heart of the Ethiopian federal system.
The other important feature of Ethiopian federalism is the promi-
nent role given to the principle of multiculturalism. As feder-
alism aims to accommodate diversity, Ethiopia, as a multiethnic
society, requires a multicultural federation. The preamble of the
Constitution clearly refers to the long history of living together
and "with rich and proud cultural legacies in territories long in-
habited". Within the federal structure, the different multicultural
elements are reflected in the state members. The nine states are
organized based on settlement patterns, language, identity, and
consent. Accordingly, the nine states are Tigray, Afar, Amhara,
Oromia, Somalia, Benshangul Gumuz, Gambella, Harari, and the
SNNPR (Southern Nations, Nationalities, and Peoples Region).
Ethiopian federalism does not limit the number of the states. Ev-
ery nation, nationality, and people has the right to establish, at
any time, its own state. Therefore, the number of the federal units
could be increased or decreased based on the consent of ethnic
groups, making it a unique feature of Ethiopian federalism.
The preamble of the Constitution stipules that "We, the Nations,
Nationalities and peoples of the Ethiopia strongly committed, to
building a political community . . . and advancing our economic
and social development . . . to live as one economic community
is necessary in order to create sustainable and mutually support-
ive conditions for ensuring respect for our rights and freedoms
and for the collective promotion of our interests" (italics added).
This shows the emphasis on creating a cooperative federalism in
Ethiopia. A common vision is indispensable for a multiethnic
country. It is impossible to build a common political and economic
community without cooperation. Though federalism values au-
tonomy, it cannot function without solidarity. Indeed, while each
order of government is autonomous, it is not so that they may
ignore each other. Rather, it is so that each, with its own char-
acteristics and capitalizing fully on its potential, can better help
others. All the governments of federation are interdependent and
must work together for their citizens, over and above their polit-
ical, regional or other differences. The ideal of federalism is the
very opposite of internal separatism; it is genuine solidarity.
In a federal system power is divided or shared between the centre
and states, each possessing powers circumscribed by the Consti-
tution. In this regard, the Ethiopian Constitution guarantees that
the federal government and the states shall have legislative, ex-
ecutive, and judicial powers (Article 50(2)). It furthers makes it
clear that their powers are constitutionally defined and that they
shall respect their powers (Article 50(2)). However, if necessary,
delegation of power is possible from the centre to the regions. In
constitution 81
this connection the Federal Government formulates and imple-

ments overall economic, social, and developmental policies. In
national matters that concern the whole country, powers are given
to the Federal Government. The regional states have "all powers
not given expressly to the Federal Government alone, or concur-
rently to the Federal Government and the states" (Article 52(1)).
All states have executive, legislative, and judiciary powers in all
matters that concern their local affairs.
Another feature to be mentioned is the principle of linguistic plu-
ralism. The Constitution makes Amharic the working language of
the federal government (Article 5(2)), but also gives the member
states the right to determine their respective working languages.
Moreover, "every nation, nationality and people has the right to
speak, to write and to develop its own language" (Article 39(2)).
3. Unity in Diversity
The features of Ethiopian federalism mentioned earlier have as
their primary objective to promote unity in diversity. According
to Assefa, the Ethiopian federal system, because of the fragile situ-
ation the country was in, threatened by various national liberation
moveÂňments, the commitment to right of self-determination and
the establishment of regional governments based on mainly on
ethno linguistic line is a bold measure that ensured the survival
of the Ethiopian state (Assefa, 2006). In general, accommodating
the diverse interests and identity of ethnic groups by providing
the right for self-determination is the overriding principle and the
most remarkable feature of the Ethiopian federal system
It was of great import throughout the constitution and one that
places this on a pedestal of its own, more or less, is the utmost
significance given to the ethno linguistic components of the so-
ciety. The preamble of the constitution does not open with the
familiar "We the people.. ." it is "We, the Nation, Nationalities and
peoples of Ethiopia . . ." this is not a constitution of the Ethiopian
citizens simple lumped together as a people. The Ethiopian citi-
zens are fits categorized in tier different ethno linguistic groupings
and then these groupings come together as hors of and beneficia-
ries from, the constitution of 1994. The ethno linguistic groupings
and the nationality issue have historic political and socioeconomic
significance beyond the cultural and linguistic expression. Indeed,
"We the nation, nationalities and peoples . . . " recognizes Ethiopia
as a Nation of Nations.
The constitution, therefore, necessarily becomes a constitution of
a Nation of Nations. The important given to the ethno linguistic
components of the society by the constitution is absolute and real
and cannot be overemphasized. Dealing with the fundamental
principles of the constitution chapter 2 starts with the clear provi-
sion that "All sovereign power resides in the Nation, Nationalities,
and peoples of Ethiopia" Indeed the constitution is considered as
nothing more than "an expression of their sovereignty."
This rather unusual constitution approach has been hailed, on the

one hand, as a stroke of genius that will uplift Ethiopian from
its age old backwardness and, on the other, as the sign of the
firs tracks for disintegration. Could both be correct in that the
outcome depends on how the instrument is employed, just as the
atom, as a fantastic source of energy, can be used either to greatly
benefit mankind or to send it or its doom?
"We the nations, nationalities and peoples of Ethiopia"... Is a for-
mula that has been developed to its full extent in the constitution?
As a concept that has bloomed fully, it has resulted in federalism
as the only logical alternative in government. Moreover, the type
of federalism it has unfolded is not a territorial federalism but an
ethnic federalism. To be sure it is not as simple as all ethnic groups
simply coming together to from the federation. Some minority
ethnic groups (i.e., those with significantly less population) have
joined with mach larger ethnic group within a state, or have joined
together again to form a state. And these state formed on the basis
of ethnicity have then come together to from the federation. These
states have retained the characteristics of their ethnic groups for
governmental and other ongoing constitution purposes. The eth-
nicity of states is not just of historical importance; it is of actual
significance in the everyday life of the people and of the federation
as a whole.
4. Some salient features of the constitution
(a) Parliamentary Democracy

Another salient feature of the constitution of "democratic" that
is contained already in Article 1 of the constitution and also
forms part of the nomenclature of the state. What this consti-
tution establishes is a parliamentary democracy much along
the manner in wish parliamentary democracies have been work-
ing in most of Western Europe and North America. The use of
the term "parliamentary democracy" assumes the exercise of
freely and fairly contested,/’ periodic election and representa-
tive assembly or assemblies that are the expression of popular
will and hold power for a mandated period.
The constitution in this respect provides for a two chamber
parliament known as the federal house, they are the house
of peoples’ Representatives and the house of federation. The
constitution also provided for a one chamber state council at
state level. The house of people’s representatives is "the high-
est authority of the Federal government" and the state council
is "the highest organ of state authority the house of federation
which is composed of representatives of nations nationalities
and peoples is the other representative assembly with specific
powers, included the ultimate "power to interpret the consti-
tution" and to decide on other matters of grave constitutional
concern such as the right to secession.
constitution 83
(b) The Right to Secession

The right to secession is one of the peculiar features of the con-
stitution that again emanates from the overriding significance
given to the ethno linguistic notion of nation, nationality and
peoples the right to secession is part of the border right to
self-determination.
The right to self-determination includes the right to develop
one’s language, promote one’s culture and preserve one’s his-
tory. Beyond that it includes the right to self-government and
equitable representation in state and national government. The
right to secession is the ultimate extension and expression of
the right to self-determination and the constitution provides
a detailed set of procedures by which this right may be ex-
ercised if necessary. The right to secession is definitely the
most controversial item in the constitution. This right which
we will examine in greater detail in chapter 9 under "The Na-
tionality Right" it has been pointed out as a basis for unity in
diversity and serves as a litmus test for democracy. It can be
a guarantee for sustainable peace and a solid foundation for
unity based on equality and mutual respect. The argument
marshaled in favor of the right to secession by any nation, na-
tionality, or people are based on the understanding that the
nation state exists to serve the people and not vice versa. If
any nation, nationality, or people sternly served by the ex-
isting status quo, it should be able to change it. Obviously
the other nations, nationalities, and people have quite a say
through the process of accommodation. Detailed procedures
are provided for the peaceful and constitution exercise of the
right to secession.
(c) Ownership of land

Another item of the constitution which is hotly debated, but
on economic rather than political terms, is the question of
ownership of land. The constitution explicitly states, "The
right to ownership of rural and urban land is exclusively bested
in the state and in the peoples of Ethiopia." It goes on the on
the to add, Land " is a common property of the Nations, Na-
tionalities and peoples of Ethiopia and shall not be subject
to sale or to other means of transfer" The general principle
that land, be it urban or rural, should not be considered sim-
ply as market commodity is based on Ethiopia experience of
long standing. The Extra ordinary significance attached to
land that propels it beyond market forces is usually put in
philosophical language. Land is seen in an intergenerational
manner as having belonged to one’s parents, grandparents.
Great grandparents and will belong to one’s children, grand-
children, great grand Children. Beyond that, land is also seen
as the common property of the extended family, the clan, the
tribe, etc. One cannot forget that land touches sensitive chords
in a traditional society that is particularly subsistence agricul-

ture based. Other modalities of use of land in traditional so-
ciety will also attribute special value beyond market forces to
land and the natural resources contained, be they water, min-
erals or pastures and forests. The dos not mean, however, that
land is therefore frozen in the interest of the status quo. Its
exploitation trough market forces and otherwise is not only
permitted but expected and encouraged. Where ownership
is understood in its original Roman definition as being the
sum total to use (usus), Enjoyment of its fruit (fructus), and
deposing thereof (abusus), it is only the last item that is not
available to market forces. The use of the land and environ-
ment of its fruit through forces and in accordance with the
laws and regulations that pertain to in are not affected. Thus
the renting, losing and development of land is both expected
and encouraged.
(d) Language Policy

Still another salient feature of the constitution that emanates
from Ethiopia being a country of Nation, Nationalities, and
peoples is the constitutional provisions dealing with language.
Under the general provisions of the first chapter of the con-
stitution, Article 5 provides both for the equality of languages
and for their practical application in government.
The general principle is first laid equal state recognition "When
this provision is put together with the provision of Article 39
(2), which provides each Nation, Nationality or people with "
the right to speak, to write and to develop its own language
. . ." As part of the right to self-determination, Then it be-
comes clear that this general principle is not a matter of plati-
tude a principle with a hollow ring. State recognition of every
Ethiopian language means that efforts for its development i.e.
., the preservation of its literature; the provision for a script
where such does not exist; the documentation of its oral liter-
ature; and the further study of each language via grammati-
cal, vocabulary and overall publication and enhanced use of
the language will be done with both state blessing and state
suppose to the extent possible.
Having said this, the question of state use of language has
to be settled. Here two provisions are made, one at federal
and the other at state level. At federal level Amharic is made
the working language of the state. This means that the federal
state in all its official dealings shall employ Amharic as its lan-
guage. But member states of the federation are allowed by the
constitution to determine their respective working languages
by law. In other words each member state through a law pro-
mulgated by its legislative council will have to determine what
the official language of that member state is. There is no ques-
tion that this process of accommodation at the linguistic level
constitution 85
is a reflection of the overall accommodation process that fed-

eralism provides. The balance will have to be made between
the need for non-cumbersome mode of communication as is
required for a modernizing state on the one hand, and on the
other the need of the different ethnic groups to feel that their
identity is fully recognized and respected.
(e) The Importance of Religion
One very important item the constitution specifically provides
for is religion. Religion has played an important part in Ethiopian
constitution history over the centuries. From animism to ar-
chaic Judaism, from Christian orthodoxy to Islam, and from
Catholicism to Protestantism, They have all left their strong
imprint at one time or other in Ethiopian constitution history.
There has been on time in Ethiopia’s monarchical constitu-
tional history when there has not been a state region. Chris-
tianity entered Ethiopia at a relatively early period around 325
A.D. and, by Supplanting polytheism and archaic Judaism,
become the state religion, Judaism’s final attempt to reverse it
fortunes around the end of the first millennium is still remem-
bered in Ethiopian history as a dark and bloody era. The other
major religion Islam has over the centuries slowly and quietly
been extending its in influence from the peripheral lowlands
inward. The one exception to this quiet Islamic development
took place towards the end of the fifteenth century, another vi-
olent attempt at supplanting Christian Orthodoxy as the state
religion. The Portuguese army, with whose help the status
quo was reestablished, became another cause for a civil war,
when Catholicism attempted to supplant Orthodoxy as the
state religion. It is the history of religious turbulence and its
complicity in constitutional upheavals that makes these con-
stitutional provisions significant.
First, the general principle is laid down that "state and religion
are separate." Secondly, the important departure is officially
announced that "there shall be no state religion." To spell out
in black and white the implication of the first two provisions,
a third one is added, saying that "government shall not inter-
fere in the affairs of religion. Religion shall not interfere in
the affairs of government. With the constitutional right of in-
dividual freedom of conscience and religion provided for by
the constitution, which includes that right to worship, exer-
cise and propagate one’s religion, individually or collectively,
and in public or private, the picture is completed.
(f) Fundamental Right and Freedoms
A significant thrust of the constitution is achieved in the field
of fundamental rights and freedoms. Nearly, one third of the
provision of the constitution deals with fundamental rights
and freedoms. Chapter 3 of the constitution is divided into
two parts and rights are categorized as human rights and
democratic right. Human rights deal basically with the rights

and freedoms of the individual and include the classical, first
generation rights to life, liberty, and the security of the person,
as well as the right of the person in a criminal case is to be
treated humanely and fairly, with all the procedural and sub-
stantive safeguards intact, throughout the princess are care-
fully spelt out. The right to equality before the law, the right
to the protection of privacy and the right to freedom of reli-
gion, belief, and conscience are all covered as part of human
right.
The compartmentalization of right as human rights on the one
hand and democratic right as human rights on the one hand
and democratic right tend to be more groups oriented and
/or political in nature. The right to freedom of thought and
expression, the right of assembly, demonstration, and pet ion,
the freedom of association, and the freedom of movement are
included in the second category. So are the rights of women
and children, as well as the right to marriage and family in-
corporated into democratic rights. The political rights to vote
and to seek election, the right of Nations, Nationalities, and
peoples to self-determination, economic, social and cultural
rights, and the rights to property are carefully enshrined. Go-
ing deep into what have internationally come to be known
as second and third generation rights or socioeconomic and
solidarity rights, the constitution in addition provides for the
right to development and environmental right.
To ensure the proper and full exercise of such farsighted en-
shrinement of fundamental rights and freedoms, the first ar-
ticle of Chapter 3 of the constitution introduces tow concepts
first, that all organs of state at all level have the "responsibility
and obligation to respect and enforce" fundamental right and
freedoms and second, that the interpretation of these rights
and freedoms shall conform to international standards, spe-
cific mention being made of the Universal declaration of Hu-
man rights and Bill of Rights. Federal and member state court
with respective judicial authority and independent judiciary
are empowered to interpret and enforce the constitution and
the whole legal regime A council of constitutional inquiry is
also provided for, whose talk is to examine constitutional is-
sues and to submit its findings to the house of Federation for
final decision.
The council of People’s Representatives establishes the Hu-
man Rights commission, and the institution of the Ombuds-
man reveals the importance given to fundamental rights and
freedoms by the constitution. The clear message of the con-
stitution is that serious with the respect for human rights.
One final interesting point to be mentioned in connection with
chapter 3 of the constitution is that in amendment procedure
is made exceptionally stringent and requires a majority vote in
constitution 87
each member state council and a two thirds majority in both

federal Houses.
(g) Constitutional Interpretation
Since the constitution, the highest overall authority in the land,
is a law it is argued its ultimate interpretation should rest with
the heights court If law. On such premises, for instance, the
American federal Supreme Court is vested with the power
of ultimately interpreting the United State constitution. In
other federal system, such as in Germany, the ultimate inter-
pretation of the constitution reset with the constitutional court
which although a specialized institution is still a court. The
Ethiopian constitution, on the other hand, in a creative stroke
provides for something quite different, emanating from and
consistent with the overriding supremacy of the nations, na-
tionalities, and peoples whose sovereignty the constitution ex-
presses. Without losing sight, characteristics as the supreme
law of the land, its characteristic as the supreme political in-
strument for self-determination, peace democracy, and socioe-
conomic development are fully exploited, thus is the ultimate
interpreter of the house of federation. The house of federa-
tion as the champion of the nations, nationalities and people
of Ethiopia whose equality it promotes and whose unity based
on their mutual consent it enhances, whose self-determination
right it enforces and whose misunderstandings it seeks to
solve, it is precisely this political institution that is vested with
"the power to interpret the constitution" The constitution does
not however consider its interpretation a purely political mat-
ter the constitution establishes the council of constitutional in-
quiry, a body of mostly legal express of high standing heeded
by the chief justice of the federal supreme court to examine
constitutional issues and submit its findings to the House of
Federation. The house of Federation thus has the official com-
petent and authorities legal advice of the council of constitu-
tional inquiry before it makes its final decisions on constitu-
tional issues.
However, there is no question but that the authority to un-
timely interpret the constitution rests with nobody but the
house of Federation. The house of federation is not bound by
the advisory opinion of the council of constitutional Inquiry.
Indeed the house of Federation can on appeal reverse a deci-
sion of the council of constitutional inquiry finding no ground
for a particular constitutional interpretation. One hopes how-
ever that law and politics would work hand in hand in un-
folding the constitution so that it constantly and increasingly
achieves the objectives it set for itself at the preamble.
(h) Constitutional Amendment
Another interesting feature of the constitution is its amend-
ment procedures. True to federal system it involves both re-
gional and federal legislative organs in the process the formal

intention of constitutional amendment can come from either
regional or federal legislative organs. Where the inattentive
comes from the regions, a third of state council must have
supported a draft by majority vote. Otherwise either of the
federal houses can initiate a constitutional amendment by a
two thirds majority vote.
Constitutional Amendment are then categorized into two or-
dinary constitutional amendments require a two thirds major-
ity vote in a joint meeting of the federal houses as well as a ma-
jority vote in two third of state councils, where constitutional
amendment deals with fundamental rights and freedoms en-
shrined in the constitution or the constitution; amendment
initiation procedures. In such cases, the federal houses must
each accept the proposal by a two third majority and all state
council must pass the draft by require popular discussion and
may be submitted for referendum.
(i) State of Emergency
State of emergency is an unfortunate and exceptional situation
that may rise in the life of a state. To foresee such a possibil-
ity and to provide for specific procedures to avert the danger
posed is not uncommon constitutions how constitutions han-
dle a state of emergency, however varies from one system to
another. The Ethiopian constitution provides for specific pro-
cedures and institutions to come to life on a temporary basis
when situations occur that amount to a state of emergency.
Atthe federal level, any of the following conditions may trig-
ger a state of emergency.
• External invasion
• Serious breakdown of law and order
• Natural disaster, or
• Serious outbreaks of epidemics
The council of minister has the power, under such circum-
stances to issue a decree proclaiming a state of emergency and
through regulations it issues, take the necessary measures to
protect the country’s sovereignty and peace, and to maintain
public security, law, and order. To this end the council of Min-
isters may suspend democratic and political right provided
for in the constitution as necessary. The council of Ministers,
however, has the duty to submit the emergency decree to the
house of People’s representatives within 48 hours of it adop-
tion if the house is in session and within 15 days if not in
session.
Once adopted by the house of People’s representatives an
emergency proclamation stays in effect up to six months and
can be extended for four month period successively the con-
stitution also provides for the simultaneous establishment of
constitution 89
an emergency board to oversee the implantation of the emer-

gency proclamation. The seven person emergency board ap-
pointed by the house of people’s Representatives from among
its members and from legal experts is particularly empowered
to ensure respect for human rights during a state of emer-
gency. These then are the important considerations that char-
acterize the Ethiopian constitution of 1994 and imprint an ex-
clusive personality known as the federal democratic Republic
of Ethiopia.
The Constitution of 1994 establishes the Federal Democratic
Republic of Ethiopia, which comprises of the Federal Gov-
ernment and the member states. Nine such member states
are enumerated by the Constitution. Then there is a tenth
entity the capital city, which is entitled to "a full measure of
self-government" and, for all practical purposes, amounts to
a state. Thus the Constitution recognizes nine stage govern-
ments plus the city of Addis Ababa and the Federal Govern-
ment. The Constitution, however, does not freeze the sys-
tem, as it expressly leaves the door open for possible further
changes since the "Nations, Nationalities and Peoples . . .
have the right to establish at any time, their own respective
states." The process by which a nation, nationality, or people
can exercise, the right to form its own state is also spelled
out by the procedure followed for the exercise of the right to
secession.
5. The Federal Government The Federal Government is structured

in terms of legislative, executive, and judicial institutions and pow-
ers. The legislative institutions of the Federal Government are the
two Federal Houses known as the House of Peoples’ Representa-
tives and the House of Federation. Then there is the President of
the Republic, who is the Head of State. The Head of Government
is the Prime Minister, who together with the Council of Minis-
ters exercises highest executive powers. Supreme federal judicial
authority is vested in the Federal Supreme Court. Federal first in-
stance and Federal High Courts may also be established if deemed
necessary by the House of Peoples Representatives. We will now
examine these institutions of the Federal Government, beginning
with the Federal Houses.
(a) The House of Peoples Representatives
The highest authority of the Federal Government rests with the
House of the peoples Representatives. The Houses of Peoples
Representatives is an institution whose members are elected for
a five year term on the basis of universal suffrage and by di-
rect, free, and fair elections through secret ballot. Each member
state is divided into electoral districts, and members are elected
by a plurality of the votes cast. This type of voting is the sim-
plest system and is also known as the "first past the post" sys-
tem. The candidate securing a larger number of votes than any
of the other contestants wins the seat. This electoral system is

operative in the United States, Great Britain, and most common
wealth countries. In spite of its simplicity and wide use, the
plurality electoral system has been criticized as producing the
least representative result. Thus, more complex systems such
as the proportional representation system have been introduced
in some countries. But whether it is some variation of the plu-
rality system, such as the preferential or alternative vote used
in Australian House of Representatives elections or the single
transferable vote of the elections to the Australian Senate no sys-
tem guarantees a proportionally balanced result France, which
seems to have tried most of the electoral systems, has reverted to
the two ballot majority system, variation of the plurality system.
One interesting but not unexpected departure from the plural-
ity electoral system the constitution makes is to ensure repre-
sentation of minority nationalities and peoples. The exception
established in favor of minorities ensures "at least 20 seats" in a
House whose members "shall not exceed 550." The particulars as
to how the representation of minorities is to be ensured is left for
implementing laws to handle.
The House of Peoples’ Representatives plays many important

roles. It sanctions encompass the legislative, financial, deliber-
ative, informative, and representative areas. With respect to its
"power to legislate" the constitution provides that "all matters
assigned to Federal jurisdiction" fall within the competence of
the House of Peoples’ Representatives. Federal jurisdiction is
something exhaustively, enumerated in twenty one provisions
under Art. 51. from the protection and defense of the Consti-
tution, through policy formulation in political, economic, and
social spheres, to more specific areas such as control of firearms,
the patenting of inventions or the protection of copyrights, and
the establishment of uniform standards of measurement and cal-
endar, federal jurisdiction is carefully defined. The reason for
such careful enumeration of the processes and functions of the
Federal Government is, of course, because of the juxtaposition-
ing of the powers and functions of the member states, which are
enumerated in Art. 52.
Beyond the careful delimitation of federal jurisdiction and hence

the broad legislative competence of the House of Peoples’ Rep-
resentatives, the constitution mandates it to "enact specific laws"
on a number of vital areas such as the utilization of land, natural
resources, and interstate lakes and rivers; interstate and foreign
commerce; interstate roads, postal, and telecom medication ser-
vices; enforcement of constitutionally established political rights;
nationality, asylum, and other specific issues. The issuance of
major codes such as a labor code, a commercial code, a penal
code, and civil laws are also specifically provided by the con-
stitution. The House of Peoples’ Representatives is also specif-
constitution 91
ically mandated to decide on the organization of national de-

fense, public security, and national police force, as well as the
proclamation of a state of emergency or a state of war pursuant
to decisions made by the Council of Ministers. The ratification
of international agreements entered into by the executive is also
specifically within its mandate. The approval of economic, so-
cial, and development policies and strategies as well as the fiscal
and monetary policy of the country, including legislation on the
National Bank and foreign and on local currency, is specifically
provided for as the competence of the House of Peoples’ Repre-
sentatives. So is the ratification of the budget of the Federal Gov-
ernment and the levying of taxes and duties on revenue sources
reserved to the Federal Government specifically provided for.
With respect to the administration of justice, the approval of the
appointment of federal judges, the establishment of the Human
Rights Commission and the institution of the ombudsman, as
well as the determination of their powers and functions are ex-
pressly provided for. The inability of state authorities to arrest
violations of human rights is considered so grave a matter, and
rightly so, that the House of Peoples’ Representatives may ini-
tiate a joint deliberative session with the House of Federation
through which appropriate decisions are then made and direc-
tives passed to the concerned state council.
The House of Peoples’ Representatives is also specifically pro-
vided with the questioning power. Having approved the ap-
pointment of members of the Executive, it has the power to call
and question the Prime Minister and other Federal officials. It
questioning power is unequivocally stated to include the power
"to investigate the Executive’s discharge of its responsibilities."
Beyond the questioning power, the House of Peoples’ Represen-
tatives, at the request of onethird of its members, may discuss
any matter pertaining to the powers of the Executive" and take
the necessary decisions and measures. Parliaments the world
over work through communities to a greater or lesser extent and
the House of Peoples’ Representatives is no exception. As man-
dated by the Constitution, it establishes standing and ad hoc
committees to accomplish its work. And it has already estab-
lished nine standing committees on the economy, the budget,
social affairs, defense, foreign affairs, administration, law, cul-
ture, and communication, as well as women’s affairs.
(b) The House of Federation

The House of Federation of the Constitution of 1994 is definitely
the "Upper House" or "Second Chamber" of the bicameral Par-
liament. Lower houses the world over have common elements
including those of being the more powerful of the two cham-
bers, are elected, and have the upper hand in lawmaking and in
matters of finance. Upper Houses, on the other hand, come in
many variations both in terms of structure and of function. How
second chambers are formed and what their function is, differs
so from parliament to parliament that it is difficult to speak of
a typical upper house. Just to mention some upper houses, the
Canadian Senate is wholly appointed, originally for life, but re-
cently a retirement age of 75 had been in force. Moreover, the
ten Canadian provinces are not equally represented in the sen-
ate. Except for initiation of financial legislation, in theory it is
as powerful as the House of Commons, although in deference to
the idea of parliamentary democracy, it generally plays a more
passive role in the parliamentary process.
The British House of Lords, although quite prestigious as an an-

cient institution, has very limited powers. It is a hereditary in-
stitution with life peers and women having been admitted lately.
Although originally the more power of the two chambers, to-
day it plays a rather limited role and its members, it is jokingly
argued, represent nobody but themselves.
In Malaysia the Senate is mostly appointed by government, ei-

ther for distinguished service or as representation of racial mi-
norities. Some members are, however, elected by state legislative
assemblies as well. Its legislative power is one of delay only
and its influence is rather limited. As one can see from the
above examples, upper houses come in various forms; some are
entirely elected, others entirely appointed, and still others par-
tially elected and partially appointed. Elections to upper houses
also take various forms. Some are directly elected while others
are indirectly elected by state legislatures. Procedures for ap-
pointment also vary to reflect various traditions and interests. In
terms of functions and powers, some upper houses have powers
equal to those of the lower houses and some have greater pow-
ers. A good example is the U.S. Senate which has powers such as
treaty ratification and confirmation of federal high ranking ap-
pointments, powers which the lower house does not enjoy. Most
upper houses, including Japan’s Houses of Councilors, however,
play a subordinate role to the lower chamber.
In Ethiopia, the House of Federation is nothing but a house of na-

tionalities elected for a five year term. Each Nation, Nationality,
and People is represented in the House of Federation. However,
larger Nations have greater representation than smaller ethnic
groups. Although each Nation, Nationality, or People is repre-
sented by "at least one member," each Nation or Nationality is
represented by one additional member of reach one million of
its population. Election of House of Federation members can be
direct or indirect, the decision being left to the councils of mem-
ber states. Thus the state councils may elect House of Federation
members themselves, or they may hold elections to have House
of Federation members are elected directly by the people. Obvi-
ously, the compositions of the state council makes a difference,
as some solidly represent one Nation or Nationality and others
constitution 93
are composites reflection reality of their state’s multi-nationality

situation.
The function of the House of Federation is very different from
that of the House of Peoples’ Representatives. Its competence
revolves firmly around the Constitution. Thus its functions are
limited in kind, but weighty. Its most important function is its
power as the interpreter of the Constitution. This should not
be misunderstood as meaning that no one else can interpret the
Constitution. The interpretation and implementation of the Con-
stitution is a daily occurrence that goes on throughout the sys-
tem. The House of Federation is, however, the ultimate author-
itative interpreter of the constitution. The formal way through
which issues of interpretation take place is via the Council of
Constitutional Inquiry. This is an institution of advisory capac-
ity made up of eleven persons. The Chief Justice and Vice Chief
Justice of the Federal Supreme Court serve as exofficio president
and vice president, respectively, of the Council of Constitutional
Inquiry. Six legal experts are appointed by the President of the
Republic after being nominated by the House of Peoples" Rep-
resentatives and three persons are designated by the House of
Federation from among its members. The Council of Consti-
tutional Inquiry is subordinate to the House of Federation and
advises the latter on constitutional issues."
When issues arise in courts of law that warrant constitutional
interpretation, and such are submitted to the Council of Consti-
tutional Inquiry by a court or a party to a dispute, the Council of
Constitution Inquire has the power to examine the constitutional
issues and either remand the case to the competent court after it
has found no grounds for constitutional interpretation, or sub-
mit its findings for constitutional interpretation to the House of
Federation, who then deliberates on it and makes the final deter-
mination. It is interesting to note that a party not satisfied with
the order of the Council of Constitutional Inquiry to remand the
case to the competent court for lack of grounds of constitutional
interpretation, may appeal against the order to the House of Fed-
eration.
How the House of Federation would proceed once it procedu-
rally finds in favor of the appellant is not constitutionally de-
fined. It would however seem logical to assume that the Council
of Constitutional Inquiry would have no part in any professional
advisory capacity, since it has already excluded itself earlier.
Unlike most federal systems around the world, which make con-
stitutional interpretation a purely legal matter by placing it squarely
in the hands of either a Constitutional Court or the Federal Supreme
Court, Ethiopia has opted for a system that benefits from author-
itative legal expertise within and beyond the Federal Supreme
Court via the Council of Constitutional Inquiry, but makes the
final decision a political one to be determined by the House of
Federation.
Another weighty matter fully entrusted to the house of Feder-
ation is the relationship among the Nations, Nationalities, and
Peoples of Ethiopia. In this respect the house of Federation
is first and foremost entrusted with the duty to "promote the
equality of the Peoples enshrined in the Constitution and en-
hance their unity based on their mutual consent." The last phrase
"unity based on mutual consent" transports one to the preamble,
which opens with, " We, the Nation, Nationalities and Peoples of
Ethiopia: strongly committed... to building a political commu-
nity. . ." In the same vein, the constitution goes on to mandate
the House of Federation to "seek solutions to misunderstandings
that may arise between states."
The sensitivity introduced by the constitution with respect to the
legislation of civil laws can only be understood when looked at
through the risk of misunderstandings that the House of fed-
eration is specifically mandated to handle. Whereas the House
of Peoples’ Representatives is entrusted with the issuance of all
sorts of laws falling within federal competence, when it comes
to ’civil laws’, the House of Federation has to first delimit the ar-
eas of civil laws that require federal legislation. Presumably the
House of Federation may not only delimit which areas of civil
law require legislation but may include directives on how they
are to be handled. Whole areas of life that have been tradition-
ally handled by customary law would definitely fall under such
injunction.
One important financial function of the House of Federation
has to do with the determination of the division of funds be-
tween federal and state Governments on revenues derived from
joint tax sources. Together with this, the House of Federation is
also empowered to determine the amount of subsidy the Federal
Government may provide to the states.
While the House of Federation concerns itself with apportion-
ment of joint revenues and subsidies, the House of Peoples’ Rep-
resentatives will have to deal with the levying of taxes and du-
ties and ratify the budget of the Federal Government. There is
no question that these various functions overlap. Moreover, it is
not unlikely that the two Houses may at times develop different
perspectives. Hence one can assume that the sensitive area of
financial competence may require joint committees to examine
and submit recommendations to joint meetings of both cham-
bers.
The House of Federation, as earlier noted, is the ultimate inter-
preter of the constitution. Beyond that, the House of Federa-
tion is also the ultimate defender of the constitutional order in
Ethiopia. One of its important areas of competence is to order
federal intervention if, in violation of the constitution, a member
state endangers the constitutional order. This cannot be a de-
constitution 95
cision that is lightly arrived at. The constitution, to begin with,

provides a lot of powers and functions to the member states. The
sum total of these powers and functions make the member states
rather powerful. In the delimitation of powers and functions,
the bottomline is arrived at by providing member states with
residual powers, i.e., powers not specifically apportioned to the
one or the other by constitution. Moreover, member states have
the ultimate right of exercising the self determination of nations,
nationalities, and peoples to the extent of secession.
Thus when the House of Federation decides to order federal
intervention, such decision necessarily assumes the exhaustion
of other formal and informal venues and the reaching of deci-
sion after careful balancing of possible outcomes and must soul
searching. Such a decision will have to take various items into
consideration including the type and level of federal interven-
tion as well as the timing. By and large, one has to assume that
such federal intervention, if and when it comes, would be of a
limited character and with specific goals, to avert the unfolding
constitutional crisis.
It should be pointed out that pursuant to Art. 55 (16) the House

of Federation in a joint session with the Houses of Peoples’ Rep-
resentatives does take appropriate measures to arrest violations
of human rights. The decisions of the joint Houses are, however,
directed at the concerned state council. The provisions empow-
ering the Houses of Federation to order the Federal Government
to intervene if a member state, in violation of the Constitution,
is in the process of endangering the constitutional order, is in-
voked either because the matter at hand is seen not as an issue
of human rights violation but as a constitutional crisis of a dif-
ferent nature, or, if seen as a human rights violation, because it
has gone beyond the capacity of state authorities to handle effec-
tively. In the latter cases, the state authorities may have become
the problem, or part of it, thus making federal intervention un-
avoidable.
Although the constitution does not expressly tie House of Fed-

eration decision to a state of emergency proclamation, there is
every reason to believe that federal government intervention in
member states because of the endangering of the constitutional
order cannot be anything endangering of the constitutional or-
der cannot be anything but a state of emergency, which is pro-
cedurally well defined under chapter 11 of the Constitution. On
last area of competence that falls squarely within the powers of
the House of Federations is the decision dealing with issues of
the right of self-determination including secession, of Nations,
Nationalities, and Peoples. Where the House of Federation has
tried everything in its power to "enhance their unity based on
their mutual consent" and, still, the compulsion to go one’s own
way becomes inevitable for a nation, nationality, or people, the
Constantine appoints the House of Federation to become, so to

speak, the midwife. In doing so, however, the Constitution pro-
vides for a careful procedure to be followed every step of the
way and sets deadlines to be respected.
The constitution mandates the House of Federation to establish
standing and ad hoc committees and to adopt its own adminis-
trative and procedural rules. It is by so doing that it can affec-
tively organize its work and produce the desired result in han-
dling its weighty task.
(c) The Legislative process

The most important actor in the lawmaking process under the
Constitution of 1994 is the house of Peoples’ Representatives.
And the most important function of the House of Peoples’ Rep-
resentatives is to issues laws. Laws, however, are complicated
documents that pass through several institutions on a "relay" ba-
sis in the course of their genesis. Thus laws do not simply begin
and end in the House of Peoples’ Representatives, but, depend-
ing on their nature, pass from one institution to the other before
they are promulgated. Law is a generic term and laws have hi-
erarchies. Hence, depending on the nature of the subject cov-
ered, the law would assume a specific title which would reveal
its place in the hierarchy and the process it has passed through
to become a law.
(d) The Executive Branch of Government

The Federal Democratic Republic is provided with a president,
who is the Head of State. The president is nominated by the
House of Peoples’ Representatives and elected by a two-thirds
majority vote of the joint session of the House of Federation.
The nominee to the office of the president need not be a member
of either chamber of the Federal Houses. However, if he is, he
vacates his parliamentary seat the moment he is elected Presi-
dent.
The President’s term of office is six years, in a five year parlia-
mentary system. Thus while the members of the Federal Houses
are elected for five years terms and the executive is appointed on
a five years basis, the President stays in office for six years and
so forms the linkage between one parliamentary term and the
other of the Federal houses and Executives.
There is no such thing as a "president for life" as the constitution
limits the presidential term of office to two terms. These two
terms need not be consecutive, though normally that is what one
would assume. A person that has served two consecutive terms
at the initial launching of the constitution as president would
have been in office for 12 years.
He should have therefore been involved with Federal Houses
and Executives of three different terms. Not only does this pro-
vide for continuity, but it also means that a new (the second)
constitution 97
president is elected by Federal Houses comfortably seated, hav-

ing already covered two fifths of their own term. And such dis-
parity in the start of term of office between President on one
hand, and the Federal Houses and the Executive on the other,
would continue under normal constitutional circumstances.
The most important function of the President of the Republic is
representation. As Head of State, the President officially and
authoritatively represents the Federal Democratic Republic of
Ethiopia and is its chief spokesman. He formally opens the joint
session of the Federal Houses at the commencement of their an-
nual session. One would safely assume that this is the time when
a "State of the Republic" address would be made, highlighting
the problems and achievements of the previous year and the
challenges posed by the coming year.
His appointment of nominees submitted to him by the Prime
Minister to serve as Ethiopia’s ambassadors and special envoys
abroad, as well as the receiving of credentials of foreign envoys
and ambassadors to Ethiopia, is also part of the President’s broad
representational function. The President’s other specific func-
tions include the granting of high military titles to nominees
submitted by the Prime Minister, the awarding of medals and
prizes, and the granting of pardon, all in accordance with proce-
dure established by law.
The President also plays a role in the legislative process by "pro-
claiming in the Negarit Gazeta laws and international agree-
ments approved by the Council of Peoples’ Representatives." The
constitution provides that laws passed by the Council of Peo-
ples’ Representatives shall be submitted to the President for sig-
nature. Moreover, a double fifteen day timeframe is specified.
First, is the fifteen day period from the time the proclamation
has been approved by the Council of Peoples’ Representatives?
The Proclamation has to reach the President within fifteen days
of its passing the House of Peoples’ Representatives. Second,
the proclamation would normally have to be signed by the Pres-
ident within fifteen days. Where the proclamation is not signed
within fifteen days of its submission to the President, it takes
effect without his signature and forthwith becomes part of the
law of the land through publication in the Negarit Gazeta. One
other crucial role the President plays is in connection with the
establishment of a new Executive following the dissolution of
the house of Peoples’ Representatives. This is a political role that
may require all the wisdom and political acumen he can muster.
Where the Prime Minister dissolves the House of Peoples’ Rep-
resentatives (with its consent) before the expiry of its term in
order to hold new elections, the President may have to play his
political role. The dissolution of the House of Peoples’ Repre-
sentatives may or may not entail the immediate fall of the gov-
ernment and the need for a new Council of Ministers. But where
it does because the Council of Ministers of a previous coalition

of parties has lost the support of the majority in the House of
Peoples’ Representatives, the President "may invite political par-
ties to form a new coalition" and take over the government. The
President is constitutionally required to invite parties to form a
coalition government within one week of the loss of its majority
support by the previous government. Such interim or caretaker
government can then be in business until the next parliamentary
election, which should take place within six months of the loss
of confidence suffered by the previous government.
Pursuant to the Constitution of 1994, the highest executive pow-
ers of the federal Government of Ethiopia are vested in the Prime
Minister and the council of Ministers. This means that the execu-
tive of the Federal Government is at its highest level constituted
by two institutions the Prime Minister and the Council of Minis-
ters.
The only constitutional requirement for the office of the Prime
Minister is that the Prime Minister be elected from among the
members of the House of Peoples’ Representatives. Unlike the
President, who is elected by a joint session of the Federal Houses,
the Prime Minister is elected by the House of Peoples’ Represen-
tatives. Unlike the President, the Prime Minister is not required
to vacate his parliamentary seat on becoming Prime minister.
The Prime Minister’s term of office is for the duration of the
mandate of the House of Peoples’ Representatives. Such man-
date is under normal circumstances for five years, the exception
arising in connection with the dissolution of the House of Peo-
ples’ Representatives as constitutionally provided for.
Since executive responsibility is assumed by the party or a coali-
tion of parties constituting the majority in the House of Peoples’
Representatives, the prime minister ship forges the direct and
visible linkage between politics and government. The consti-
tutional enumeration of the powers and functions of the Prime
Minister exuberate the executive aura. He is the Chief Executive,
the chairman of the council of Ministers, and the Commander in
Chief of the armed forces. With respect to the Council of Minis-
ters, he leads it, coordinates its activities, and acts as its represen-
tative. He ensures the implementation of laws, policies, regula-
tions, and directives adopted by the House of Peoples’ Represen-
tatives and the Council of Ministers. He ensures the efficiency of
the Federal administration and takes such corrective measures
as are necessary.
The Prime Minister appoints officials of the Federal Government
other than the members of the Council of Ministers, Commis-
sioners, Auditor General, and President and Vice President of
the Federal Supreme Court, all the latter requiring approval and
appointment by the House of Peoples’ Representatives after se-
lection and submission of nominees by the Prime Minister.
constitution 99
The Prime Minister is given overall supervision power over the

implementation of the country’s foreign policy. He also submits
nominees for medals and prizes to be awarded by the President
of the Republic on the basis of laws or decisions adopted by
the House of Peoples’ Representatives. In light of the executive
powers and functions he is entrusted with, it is appropriate that
the Prime Minister is charged with the respect and protection of
the Constitution. The Prime Minister submits periodic reports to
the House of Peoples’ Representatives on the state of the Nation,
on work accomplished by the government, and on future plans.
The Constitution, mindful of the heavy responsibility shouldered

by the Prime Minister, provides for the office of Deputy Prime
Minister. The Deputy Prime Minister has no constitutionally
specified task except to carry out responsibilities specifically en-
trusted to him by the Prime Minister, and to act on behalf of
the Prime Minister in his absence. As may be expected, the
deputy prime minister’s responsibility is to the Prime Minister.
The council of Ministers is the other institution with the high-
est executive powers of the Federal Government. Its members,
upon nomination by the Prime Minister, are appointed by the
House of Peoples’ Representatives from among members of the
Federal Houses or otherwise. The Council of Ministers has a
dual accountability: it is responsible to the Prime Minister and
to the House of Peoples’ Representatives in all its decisions. Its
membership includes the Prime Minister, Deputy Prime Min-
ister, Ministers of the Federal Government, and other officials
whose membership has been determined by law.
The Council of Ministers’ main powers and functions may be

categorized as falling into organizational, legal, and economic ar-
eas. There is no question but that the Council of Ministers exerts
strong influence in economic matters: it draws the annual bud-
get of the Federal Government and implements it upon approval
by the House of Peoples’ Representatives. In constitutional expo-
sition, the emphasis is usually placed on the legislature enjoying
control over the power of the purse. Well taken as the point is, it
should be pointed out that in spite of legislative power to cut and
amend budgetary provisions and provide overall leadership, this
is but the visible tip of the iceberg. Much of the work of plan-
ning and formulation, implementation and execution connected
with the budget is still carried out by the Executive, and the
Council of Ministers is fully responsible for it. The budget is a
means to an end. Hence the formulation and implementation
of economic, social, and development policies and strategies are
provided for in the powers and functions of the Council of Min-
isters. It should be pointed out that although we are dealing with
only the federal component in a federal regional budgetary and
socioeconomic competence power play, the federal government,
beyond its own federal budget and socio economic policy and
strategy, does go into regional activities via important subsidies

it provides to the states for implementation of states socioeco-
nomic policies. As part of the economic competence it enjoys,
the Council of Ministers is specifically empowered with ensur-
ing the proper execution of financial and monetary policies. It
administers the National Bank, decides on the printing of money
and the borrowing of internal and external loans, and regulates
the circulation of money and foreign currency.
The competence of the Council of ministers in legal matters is
vast and varied. It is first of all empowered to ensure the over-
all implementation of laws and decisions adopted by the House
of Peoples’ Representatives. The Council of Ministers does this,
among other things, by issuing implementing regulations on the
basis of power granted to it by the legislature. It also ensures the
observance of law and order through its law enforcement agen-
cies. The Council of Ministers in exceptional situations would
issue decree of state of emergency and submit it to the House
of Peoples’ Representatives and thereby start the state of emer-
gency machinery rolling with all its constitutional implications.
But what the Council of Ministers submits to the House of Peo-
ples’ Representatives on a regular basis are draft proclamations
on any matter falling within federal competence as defined by
the Constitution.
The Council of Ministers, as part of its powers and functions in
organizational matters, decides on the organizational structure
of all administrative agencies responsible to it. It thereby coor-
dinates their activities and provides leadership. The Council of
Ministers is specifically empowered to formulate foreign policy
and exercise overall supervision over its implementation. Other
specific areas provided by the Constitution as falling within the
charge of the council of Ministers include the protection of patents
and copyrights and the providing of uniform standards of mea-
surement and calendar.
The dual accountability of the Council of Ministers is reflected
in the constitutional provision dealing with its powers and func-
tions. Beyond and in addition to the powers and functions enu-
merated, the Council of ministers is charged with the duty to
carry out other responsibilities that may be entrusted to it by the
House of Peoples’ Representatives and the Prime Minister.
(e) Structure and powers of the courts

The Constitution of 1994, as may be expected in a federal sys-
tem, established two sets of courts and comparable jurisdictions.
Thus the constitution provides for a three layered Federal court
system at the pinnacle of which sits the Federal Supreme Court,
the highest court in the land. The two other courts of the fed-
eral government (i.e., the Federal High Court and the Federal
First Instance Court) are also specifically mentioned and their
constitution 101
jurisdiction, which would be provided for in detail by relevant

legislation, is clearly assumed by the constitution. What is in-
teresting, however, is that these two latter federal courts are not
automatically constituted. Unlike the federal Supreme Court,
which is automatically established by the constitution, the Fed-
eral High and the Federal First Instance courts may be estab-
lished, countrywide or partially, by a two thirds decision of the
Council of Peoples’ Representatives, if and when deemed nec-
essary. In their absence, federal high and first instance judicial
powers are delegated to and exercised by State Courts.
The Constitution at the same time establishes a three tier court
system of State Supreme, High, and First Instance courts. Unlike
the federal High and First Instance Courts, all three State Courts
are atomically constituted. The State High Court in addition
assumes Federal First Instance judicial powers in the absence of
the latter. So does the state Supreme Court in addition to its state
jurisdiction assume Federal High Court powers in the absence of
the latter?
The pragmatic approach of theoretically providing for a two tier
parallel court system, as would be ideally expected in a federa-
tive constitutional order, but leaving its actual opera tonality to
necessity, cleverly skirts the perennial problem of court systems
in a federative constitutional order. On one hand the need exists
to delineate federal and state jurisdiction and then go into hierar-
chical material jurisdiction. Having done that, actually establish-
ing all the envisaged courts seems logical. On the other hand, the
problem arises of creating procedural confusion and unnecessar-
ily extended lack of uniformity in the administration of justice
as well as wasting scarce resources if all the courts envisaged are
established. What the Constitution provides for, fully recognizes
the existence of two sets of jurisdictions federal and state. It also
establishes one courts system (the state court system) in full and
the other (the federal court system) partially, with the possibility
of establishing the remaining federal courts as the need arises in
terms of hierarchy as well as of geography, Thus it is possible
that in densely populated urban areas with fast economic activ-
ities, the load of the courts may be significantly higher, thereby
warranting the establishment of the federal courts.
Such a clever way out of the problem, however, places a premium
on the quality of the judiciary. To be able to be at ease with
conflicts of law issues and easily switch from state to federal
systems requires a judiciary that is sharp and well trained.
With respect to court structure, the constitution makes two ad-
ditional determinations. One is that ad hoc or special courts
outside the regular court system are prohibited; and, two, that
religious or customary courts may be established or given offi-
cial recognition by the Council of Peoples’ Representatives. The
jurisdiction of religious or customary courts is however limited
to adjudication of personal or family matters. The phrase "insti-

tutions . . . legally empowered to exercise judicial functions"
is included to denote administrative tribunals such as labor or
tax determinant institutions within the Executive. The decision
of such institutions would however be appealable to court under
standard judicial review procedures. This would be one conclu-
sion to be derived from the constitutional provision that "judicial
powers are vested solely in the courts" at both Federal and State
level. Other conclusions would deal with the strengthening of
judicial independence and the freedom of the courts from inter-
ference or influence of any government body or official.
The Constitution clearly provides for two sets of jurisdiction Fed-
eral and State. The Federal Supreme Court has the highest and fi-
nal jurisdiction over federal matters and the State Supreme Court
has the highest and final jurisdiction over state matters. This
said however the Constitution does provide for one court to be
involved in the jurisdiction of the other court.
(f) The Federal Supreme Court

The Federal Supreme Court has the constitutional authority to,
in cassation, review and correct any final decision of a "basic
error’ of law." Such final decision could be of a federal or state
court, including a decision of the State Supreme Court. For the
Federal Supreme Court to make this exceptional move to review
and correct a decision of another court and particularly of a State
Court on matters within state jurisdiction seems at first glance
out of character in the federal order. The fear may be expressed
of diluting the federal system and eroding the power and au-
thority of States. There is no question that at the extreme there is
risk that such authority can in theory be abused by its excessive
employment.
The Constitution, however, provides several safeguards. The
Federal Supreme Court, first of all, has to sit in cassation to ex-
amine such a case. Secondly, such authority of review is limited
to correcting a basic error in law. In other words, it is only error
in connection with "Question of law" and not "question of fact"
that gives rise to such authority.
Moreover, the error in question of law has to be of a basic nature
that may have unfortunate consequences of shaking the constitu-
tional or legal order. The overriding objective for such authority
is to ensure the protection of the constitution and the whole le-
gal regime it unfolds for safeguarding fundamental rights and
freedoms and guaranteeing a lasting peace, a democratic order,
and socioeconomic development.
(g) State Supreme and High Courts

It has already been mentioned that the state Supreme Court and
State High Court exercise a Federal High Court and Federal First
Instance Court jurisdiction respectively until such delegation of
constitution 103
authority is terminated. State Supreme Court in addition to its

regular appellate authority may also review and correct basic er-
ror of law in final decisions. To do so however, it sits in cassation
and deals only with state matters. What this means is that cases
dealing with state matters which reach final decision at the State
High Court level may be reviewed and corrected by the State
Supreme Court.
Appellate jurisdiction follows the court structure as may be ex-
pected. In addition, States High Court decision in pursuance
of federal first instance jurisdiction is appealable to the State
Supreme Court and State Supreme Court decision on federal
matter is appealable to the Federal Supreme Court.
With respect to appellate jurisdiction, a question may arise that
is not directly covered by the constitution. Where the House
of Peoples’ Representatives establishes one level of federal court
and not the other, federal matter cases may start at State High
Court and on appeal move to Federal High court. It is also pos-
sible that federal cases that started at Federal First Instance Court
may on appeal continue to the State Supreme Court. Such move
from one court system to the other is no problem from a legal
point of view. It is the distance to be covered by concerned par-
ties as they move from one place to the next that has to be taken
into account. In any case, if the House of Peoples’ Represen-
tatives establishes both Federal High and First Instance courts
simultaneously, the question would be avoided.
(h) Independence of the Judiciary

The independence of the judiciary and that it is to be directed
solely by the law is a theme that is strongly emphasized by the
constitution. Judicial powers are vested solely in the courts, and
the establishment of special or ad hoc courts that do not fol-
low legally prescribed procedures is categorically prohibited. As
pointed out earlier, President and Vice President of the Federal
Supreme Court are appointed by the House of Peoples’ Repre-
sentatives, on submission of nominees by the Prime Minister.
The same procedure is followed for the appointment of all other
federal judges. In addition however, the nominees the Prime
Minister submits have to be on the basis of selections made
by the Federal Judicial Administration Council. Federal judges,
once appointed, cannot be removed from duty until the legally
mandated retirement age, with the exception that the federal Ju-
dicial Administration Council may remove a judge for violation
of disciplinary rules or on grounds of gross incompetence or in-
efficiency.
The Council may also decide that a judge can no longer carry
out his responsibilities on account of illness. But the decision of
the council to remove a federal judge before his retirement age,
to be final, has to be approved by a majority vote of the House of
Peoples’ Representatives. The constitution interestingly enough,

also forbids the extension of the service of a judge beyond the
legally mandated retirement age. The import of all these provi-
sions is to strengthen the independence of the federal judiciary.
The same principles and procedures apply mutates mutatis with
respect to state judiciary. State Supreme Court President and
Vice President are appointed by state councils on the basis of
nominees submitted by state heads of the executive. State Supreme
and High Courts judges are also appointed by state councils. But
nominees are submitted by State Judicial Administration Coun-
cils before submitting nominations to their state councils have to
obtain the views of the Federal Judicial Administration Coun-
cil, which has to forward its views and recommendations within
three months. The appointment of state First Instance Court
judges is also done by state councils on the basis of nominations
submitted by State Judicial Administration Council. The latter,
however, do not have to submit their state first Instance Court
judge nominees to the Federal Judicial Administration Council.
State Court judges once appointed may not be removed before
reaching the legally mandated retirement age, nor can their ser-
vice be extended beyond the mandated retirement age. The State
Judicial Administration Council plays the same role as its fed-
eral counterpart and the State Council plays the same role as the
council of Peoples’ Representatives with respect to removal from
office of state court judges, and on the same grounds. Apart
from removal from office which has to be sanctioned by the re-
spective legislative body, decisions on the discipline and transfer
of judges at any level is made by the respective Judicial Admin-
istration Council.
Courts are also made financially independent of the executive.
The Federal Supreme Court draws up and submits to the House
of Peoples’ Representatives the administrative budget of Federal
Courts and implements it upon approval. State Councils do the
same with respect to the administrative budgets of State courts.
The House of Peoples’ Representatives in addition is mandated
by the constitution to compensate for the expenses state supreme
and high courts incur in adjudicating disputes on federal mat-
ters.
Summary
The unit on constitution constitutes two parts. The first part

addresses meaning and the process of constitution making, the
basic principles and characteristic features of constitution and
constitutionalism. The second part of the unit deals with the
constitutional development in Ethiopia focusing on the pre 1994
period which covers the monarchical regimes and the Dergue
constitution 105
regime and the post 1994 period which deals with the current
constitution of the country.
Self-evaluation
1. Why the Constitution is supreme?
2. Discuss the process of constitution making.
3. Explain the fundamental principles of the Constitution? Where

are they enshrined?
4. Identify and explain the salient features of the constitution of

1994 (FDRE Constitution).
5. Explain how the Constitution of FDRE is amended with ref-

erence to the relevant provisions of the constitution.
6. Identify the organ entitled to interpret the FDRE constitution

of 1994 and explain its duties by reference to the relevant pro-
visions of the Constitution.

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Unit 2

• Explain the basic principles and characteristic features of con-

• Understand constitutional development in Ethiopia

• Identify the features of the FDRE constitution

• What are the fundamental principles of constitution?

• How do you understand the development of constitution in

2.1 Meaning and process of constitution

This is the document which serves as the fundamental law of the

2.2 Basic principles and characteristic features of constitution

For genuine democracies, constitutions consist of overarching ar-

be separated. This is one of the most fundamental tenets of modern

2.2.2 Basic Principles of Constitution

• Due Process of Law

• Prohibition of Double Jeopardy

• Non retroactivity of law

"Constitutionalism and the rule of law are cornerstones of the

The application of constitutional due process is traditionally di-

Prohibition of double jeopardy: Is prohibition of a second

Habeas corpus: Is a judicial order to someone holding a person

Non retroactivity of law: A criminal act shall be punished by

Separation of powers: It is a doctrine, derived from Locke and

The traditional separation is between the LEGISLATURE, the EXEC-

Judicial review: Is a court’s power to declare a statute, an appeal

2.3 Constitutional development in Ethiopia before 1994

2.3.1 The Fetha Negast

the fourth corresponds to the Precepts of the Old Testament, a com-

modern legislation of the country. In promulgating Ethiopia’s first

2.3.2 The move toward modern institution

What is more with the initiation of European way of thinking (like

of the emperor’s initiative in favoring and supporting crafts men

2.3.3 The First Written Constitution of Ethiopia of 1931

1 The significance of the introduction of the written constitution has 1

In doing so it is useful to separate the internal from the external in-

monarch less accessible to the limiting influence of Church and no-

boards for government proposals. Another innovation of the written

– Interest to establish a strong Central government

– Due to the communication with Westerners

It contains two parts:

1. Specific for the Nobility and Bishops

• It grants land holding rights and privileges to them

• Enacted for the ordinary citizen

2. Its major Contents:

• The Empire and Succession to the throne

1. The legislature two chambers

• Chamber of Deputies (Chosen by nobility and local chiefs )

• Without office of the PM until 1942

• Judges appointed by the Emperor

2.3.4 The 1955 Revised Constitution

and the ratification of the Eritrea constitution by the newly created

• Remains of modernity left by the Italians 1941

• Ethiopian membership to the UN 1945

• Orientation of western ideas which could not be carried out under

• Federation with Eritrea; which had a bit modern constitution (Lib-

• Proclamation No. 2/1942 that established Administrative provinces

As per the Revised Constitution, the Emperor had the following

• Head of state and government.

• Oversees justice through "Zufan Chilot"

• All laws need to be approved by him.

• Appointment/dismissal of ministers and judges.

• Appointment of members of chambers.