CONSTITUTIONAL LAW I MG

CHAPTER ONE

BASIC CONCEPTUAL FRAMEWORK

 State as a Political and Juridical Concept

 State as a Political Concept
 Constitution is a mechanism by, or a channel through which political power is converted into an
institution of the state, as a consequence of which power is structured. Because of the nexus
between and among state, power and law, a constitution does not only govern the relationship
between the governed and the government (government understood as the agency or machinery
of the state), but also lays down the basis and justification of state and government, as juridical
concept and structure.
 State as a Juristic Person
 From the point of Political Science, the concept of state comprises three fundamental elements
 a community of people,
 with a definite territory, and
 A political power.
Sovereignty
 The capacity to monopolies on the use of force (state power) over a given political community of
within a given territory is known as sovereignty.
 All states enjoy sovereign equality. They have equal rights and duties and are equal members of
the international community not withstanding differences of an economic, social, political or
other nature. In particular, sovereign equality includes the following elements:-
 States are judicially equal
 Each state enjoys the rights inherent sovereignty in full;
 Each state has the duty to respect the personality of other states;
 The territorial integrity and political independence of the state are inviolable;
 Each state has the right to freely to choose and develop its political, social, economic and
cultural systems;
 Each state has the duty to comply fully and in good fully with its international obligation
and to live in peace with other states.

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 Forms of Sovereignty in International Law
 There are six main forms of sovereignty:
Internal or Territorial Sovereignty
 Our planet is legally divided into approximately 200 sovereign states. Within its own territory,
each of these states is exclusively sovereign, in the sense that it has ―exclusive competence‖ or
―domestic jurisdiction‖ and the monopoly of power over its territory and nationals.
External Sovereignty
 The state is externally sovereign, in the sense that it is not subjected (against its will) to another
state or to any higher authority. International Law, however, imposes certain limits to both the
internal and external aspects of sovereignty of states. The most important ones are formulated in
the UN Charter and the 1970 Declaration on Principles of International Relations. They include
the obligation that states, in their international relations, shall refrain from threatening or using
force, oblige to co-operate with one another, abide by the principles of equal rights and self-
determination of peoples.
Sovereign Equality
 All states are juridically equal, in the sense that, formally they have identical rights at the
international level.
Extraterritorial Sovereignty
 In the 19th Century, some Asian and African states were forced to sign capitulation treaties with
European states, whereby European nationals and their property were made immune from local
authority and jurisdiction.
Permanent Sovereignty over Natural Resources
 It is a well-established principle of International Law that every state can freely dispose of the
natural wealth and resources within its territory a principle which is commonly known as
permanent sovereignty over natural resources.

 Sovereignty as a Dynamic Concept

 The changes in the theory and practice of sovereignty, as they evolved in the past, are a reflection
of the changing functions attributed to sovereignty and the state in a given period.
The Concept of Nationality
 Nationality of an individual is his quality of being a subject of a certain state. Hence, it is one of
the attributes given to a physical person.

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  Although it is for the international law of each state to determine who is and who is not a national
of the state it is nevertheless of legal and practical interest to a certain how nationality can be
acquired under such laws.
 The five most common modes of acquiring nationality are
1. birth, 2. Naturalization, 3. Reintegration , 4.annexation and 5. Cession.
 According to this rule, every child born on the territory of such a state, whether the parents be
citizens or aliens becomes a national of such state, whereas a child born abroad is foreign
although the parents may be nationals.

 Democracy and Constitutionalism

 Constitutionalism enshrines respect for human worth and dignity as its central principle, too. To
protect that value, citizens must have a right to political participation, and their government must
be hedged in by substantive limits on what it can do, even when perfectly mirroring the popular
will. What constitutionalism insists on is having limited government. Predictability of
governmental actions is also a characteristic feature of its typology.
Constitutionalism
 Constitutionalism, therefore, pertains to two kinds of relationships. The relationship between
government and nationals/citizens, residents/ is the first category – the substantive. The second
(the formal) refers to the appraisal of one branch of government vis-à-vis the other; and to their
inter-relationship. It is these two aspects of constitutionalism are which the quit-essentials of a
constitution are, is that written, rigid, flexible, etc.
 Constitutionalism and democratic theory raise questions about the concept of a constitution and
the relationship of any particular constitution to those theories.

The Concept of “Constitution”

 A constitution as sham/cosmetic or real has a principal function.
 A Constitution as a Charter for Governments: At minimum, an authoritative constitutional
text would more often sketch the fundamental modes of legitimate governmental operations.
 A constitution as a guardian of fundamental rights
 The constitution as covenant, symbol, and aspiration: In so far as a constitution is a covenant
by which a group of people agree to (re) transform themselves from mere state into a nation.

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 Rule of Law
 These identified eight elements of law, recognized as necessary for a society aspiring to institute the
Rule of law state as follows:-
1. Laws must exist and those laws should be able to win obedience.
2. Laws must be published.
3. Laws must be prospective in nature so that the effect of the law may only take place
after the law has been passed. Laws should be written with reasonable clarity to avoid
unfair enforcement.
4. Law must avoid contradictions. (intelligibility)
5. Law must not command the impossible. ( Non self-contradictoriness)
6. Law must be general.
7. Laws must stay constant through time to allow the formalization of rules; however; law
also must allow for timely revision when the underlying and political circumstances
have changed.
8. Official action should be consistent with the declared rule. (Congruency)
 Important Components of Rule of Law Reforms
Court Reforms
 To increase independence of the courts, the government can provide them with funding that will
allow them to make their own financial and administrative decisions. Furthermore, for countries
that have already established these structural reforms to encourage the adoption of the rule of law,
court performance should be evaluated on a periodic basis.
 Developing Legal Rules and Legal Systems

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 CHAPTER TWO

CREATING PARADIGMS OF STATE

 The constitutional politics cannot possibly be understood without reference to the respective and
related histories
 . Greek constitution gave political philosophy and its inspiration opened men‘s minds to the finer
purpose of political organization.
 Roman constitutionalism gave western world the reality of law and the ideal of unity. Feudalism
bridged the gulf between the chaos following the fall of the Roman Empire in the west and the
emergence of the modern state.
 The progress of centralization through the crown in England, France and Spain during the Middle
Ages was necessary to destroy the evils of feudalism and to lay the foundations of a national
policy, while the growth of partially representative institutions in those countries marked in
Western Europe the first faint beginnings of the democratic state.
 The Renaissance carried forward the centralizing process in the west of Europe and planted yet
more securely the seed of nationalism there.
 English constitutionalism supplied a continuity of life to liberal institutions through many
centuries where they were dead or had never lived, permitted the growth of its own institutions
among those communities in all parts of the world of which England herself was the mother and
supplied the pattern of a constitution when the moment came for any newly-liberated community
to found one.
 The American and the French Revolutions gave the modern world the first examples of
documentary constitutions, thus finding an immediate way of reconciling liberty and authority,
the rights of man and organized movement.
 The 19th century saw the ideals of liberal reform and nationalism struggling for recognition, and
their partial retaliation in political forms.
 The industrial Revolution intensified both nationalism and constitutional reform, first by fostering
the policy of economic protection and then by extension of the franchise and the organization of
national parties.
 The first World War gave a tremendous incentive to constitutionalism by destroying the illiberal
governments, by creating new states out of hitherto oppressed nationalities, by establishing
constitutions on the basis of nationalism and democracy and finally by creating the will to
international peace of constitutional lines through the establishment of the League of Nations.

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  But in the succeeding years there was a violent reaction against political constitutionalism, and
the Russian Revolution of 1917 was followed by the fascist outbreak in Italy, the Nazi upheaval
in Germany, and the victory of Franco over the Republicans in Spain, while the nations of Eastern
Europe generally tended under Nazi and Fascist influences, to sacrifice the constitutional
safeguards they had so recently won. The Second World War left a complex and menacing
situation for the national democratic constitutionalism of the west which has to meet not only the
challenge of communism but the danger of a resurgence of fascism and the incalculable effects of
emergent Afro Asian nationalism.
 The second fact which should emerge from this sketch is that national democratic
constitutionalism, ancient though its origins may be, is still in an experimental stage and that if it
is to survive in competition with more revolutionary types of government, we must be prepared
constantly to adopt it to the ever-changing conditions of modern society.
 The basic purpose of a political constitution is, after all, the same whatever form it takes to secure
social peace and progress, safeguard individual rights and promote national well-being.

 Developments in Ethiopia
 Attempts in Developing the Ethiopian Nation-State
The Nobility
 The existence of the ―Mekuanent‖ and the ―Kahenat‖ (the nobility and the clergy, respectively)
was, likewise, upheld as another significant factor for the maintenance of the status quo. The class
of nobility consisted of the royal nobility; their power was all encompassing with respect to the
particular material and local jurisdiction.
The Church
 Constitutionally, church and state were, in form and in essence, one and the same thing in
traditional Ethiopian polity. Their respective source of authority was different. The king‘s
authority emanated from Solomoic, king David and Jerusalem,
 The Emperor and the church working together ―provided the unifying elements which continually
countered the centrifugal forces of geography, ethnicity and aristocracy‖.

 The 1931 Constitution: the Japanese Paradigm

 The Emperor had the prerogative to determine the organization of all organs of administration,
pursuant to which the cabinet headed by the prime Minister was appointed by the Emperor on the
advice of elder statesmen. Judicial authority was, in similar manner, vested in the sovereign
power of the Emperor.

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  The 1955 Revised Constitution: the Westminster Paradigm and the Aborted Reform thereof.
 The sovereignty of the Empire is vested in the Emperor and the supreme authority over all the
affairs of the Empire is exercised by himself a Head of state, in the manner provided for in the
present constitution‖.
 The legislative body was bi-cameral: Senators were appointed from the nobility and a few from
the commons for their meritorious achievements, while the Deputies were directly elected from
equally populated constituencies.
 The judiciary was appointed by the Emperor, subject to a special law, which was yet to come and
which was supposed to regulate manner of selection, tenure, appointment and dismissal.
 Finally, the constitution was declared to be the supreme law of the Empire and as such, acts or
enactments which were found inconsistent with the constitution were rendered null and void.
 The 1974 Revolution and the 1987 Constitution: the Soviet Paradigm
 Rural and urban lands were nationalized. All production and distribution, private enterprises, including
rental houses were brought under the ownership and control of the state. The Emperor, along with
ministers, governors, the high nobility and the top brass were executed, the rest were detained. Red
Terror was unleashed against opposition and even against individual dissenters. In short, the Russian
model of revolution and socialism were in the making; what made different the Ethiopian case was that
military dictatorship was combined.
 Judges were elected, recalled and dismissed by the parliament and more interestingly the term of their
office was made to be congruent with that of the parliament. Although judges were in those days, as in
the past, to be guided by ―no other authority than the law‖, it was clear more than over before that the
judiciary was under the double yoke of the executive and the parliament. On top of this socialist legality
required the construction of laws in accordance with ―revolutionary legal consciouness‖. Unfortunately,
revolution knows very little of law.
 The constitution does not merit so much discussion because it was dead well before it was born.
 The Transitional Charter- 1991: A Prelude to Federalism
 The Transitional Period Charter has completely changed the structure of the State, i.e., from a unitary to a
federal structure. Although there was no mention of federal arrangement in the Charter.
 The Transitional Period Charter came to force immediately after the downfall of the P.D.R.E. The
Charter declared that the provisions of the Universal Declaration of Human Rights were respected fully.
 a new chapter in Ethiopia in which freedom, equal rights and self-administration of all the peoples shall
be the governing principles of political, economic and social life. The Charter also guaranteed each
nation, nationality and peoples 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
presentation.

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 CHAPTER THREE

MAKING A CONSTITUTION

 To start with, it is a truism that countries make a new constitution when they wish to make a fresh
start, mostly for compelling political reasons. This can be evidenced from the fact that the making
of a new constitution or amendment of the existing ones usually, if not always, involves a
significant re-allocation of political or other powers.
 In hierarchical polities, constitution making is essentially a process of handing down a
constitution from the top, the way medieval kings granted charters.
 In organic polities, the process of constitution making is also an organic one, consisting of a
series of acts negotiated among the established bodies that share in the governance of the polity.
 In such polities constitutions are rarely written and are even more rarely replaced. Rather
constitutional making and change come in bits and pieces - on a gradually basis.
 The New World Experience
 Covenant, Compact, Contract
 Covenants can bind any number of partners for a variety of purposes, but in their essence they are
political in that their bonds are used principally to establish bodies political and social.
 Covenant is tied in an ambiguous relationship to two related terms, compact and contract. On the
one hand, both compacts and contracts are derived from covenant, and sometimes the terms are
even used interchangeably. On the other hand, there are very real differences between the three
which need clarification.
 Both covenants and their derivative, compacts, differ from contracts in that the first two are
constitutional or public and the last private in character.
 As such, covenantal or compactual obligations are broadly reciprocal. Those bound by one or the
other are obligated to respond to one another beyond the letter of the law rather than to limit their
obligations to the narrowest contractual requirements.
 Hence, covenants and compacts are inherently designed to be flexible in certain respects as well
as firm in others.
 As expressions of private law, contracts tend to be interpreted as narrowly as possible so as to
limit the obligation of the contracting parties to what is explicitly mandated by the contract itself.
 A covenant differs from a compact in that its morally binding dimension takes precedence over
its legal dimension. In its heart of hearts, a covenant is an agreement in which a transcendent
moral force, traditionally God, is a party, usually a direct party, to or guarantor of a particular
relationship; whereas, when the term compact is used, a moral force is only indirectly involved. A

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 compact, based as it is on mutual pledges rather than the guarantees of a higher authority, rests
more heavily on a legal though still ethical grounding for its politics.
 In other words, compact is a secular phenomenon. This is historically verifiable by examining the
shift in terminology that took place in the seventeenth and eighteenth centuries.
 The distinction is not always used with strict clarity, it does appear consistently.

 What a Constitution should contain

 since the major purpose of a constitution is to ;-
 establish the main organs of a government and
 ensure appropriate power division among them and
 also to control the exercise of governmental power, especially as affects the rights and
interests of individual citizens and those of different communities in a multiethnic
community,
 The constitution is supposed to set standards against which governmental actions could be measured.
 It should also reflect or take good account of the country‘s geography and history, its legal
system, and existing form of government and the culture of the people. Is the country
homogeneous or multi-ethnic? What are the units of social organization and the importance
given to customary rights? And how are individual rights reconciled with group rights? are
few of the questions that need to be addressed by the constitution?
 Status of International Instruments under Ethiopian Constitutional Framework
 Under this topic we will try to locate the place of international agreements to which Ethiopia
is a party in the hierarchy of laws in Ethiopia. Pursuant to Art 9(4) of the FDRE constitution,
international agreements ratified by Ethiopia make an integral part of the law of the land.
 In fact, some people argue that international treaties are not laws, despite ratification, unless
they are published in the federal Negarit Gazette by virtue of Art 71(2) of the FDRE
constitution.
 But this agreement doesn‘t hold water as what is stated in this specific sub article is not to be
taken as having an effect of rendering international treaties not published in the Negarit
Gazette invalid.
 This is because the provision doesn‘t clearly state that international treaties will not become
laws unless published.
 It only tries to indicate the formal requirements, the non-fulfillment of which doesn‘t
necessarily render that particular instrument non-binding as much as the failure and/or refusal

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 of the president to put his signature on the draft bill doesn‘t stop it from becoming a binding
law.
 Moreover, as states cannot invoke their laws as defense for failure to conform to international
commitments they have entered into, adhering to the earlier arguments would not take us any
further since ratification alone would elevate their status from mere agreements to binding
laws.
 Thus, it would be naive to argue that these treaties do not have binding effect for they are not
published in the federal Negarit Gazette as the latter is no more than a matter of formality.
 Coming back to the main issue at hand, can we say, as international treaties to which Ethiopia is a
party will arguably become part and parcel of the law of the land once ratified by an organ authorized
to do so, i.e., the House of Peoples‘ Representatives that they will have greater or equal status with
the constitution? To put the question differently, if international instruments are regarded as part and
parcel of the law of the land, what is their hierarchy in the Ethiopian legal system?
 To begin with, it is provided under Article 9(1) of the FDRE constitution that the constitution is
the supreme law of the land and any law (emphasis added) contradicting with the constitution is
null and void.
 As international agreements which are ratified by Ethiopia will become an integral part of the law
of the land by virtue of Article 9(4) of the constitution and the phrase ―any law‖ in sub-article 1
of Article 9 includes international treaties, one can have the audacity to conclude that
international treaties are subordinate to the constitution as much as other subsidiary legislations
are.
 But, it is provided in Article 13(2) of the FDRE Constitution that the third chapter shall be
interpreted in a manner conforming to (emphasis added) the principle of the Universal
Declaration of Human Rights, International Conventions on Human Rights and international
instruments adopted by Ethiopia.
 What one can discern from the above article is that international instruments are not always
subordinate to the constitution, at least, partly. Pursuant to the aforementioned article, where
never there arises the need for interpretation of any of the provisions under the third chapter of
the constitution, resort should be made to relevant international instruments such as the UHDR
and other human rights instruments to which Ethiopia is a party.
 Thus, as long as the application of any of the provisions under the third chapter of the constitution
meshes well with the spirit of those international instruments and there is no need for
interpretation, all international instruments ratified by Ethiopia are subordinate, in hierarchy, to
the constitution.

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 CHAPTER FOUR

MAKING PARADIGM OF CONSTITUTIONS BY CLASSIFICATIONS

 Classification of Constitution
 By looking at the Nature of the Constitution itself: Traditional approach
Written /unwritten, codified/un-codified
 What is meant by a written constitution is, therefore, one that is reduced into a form of a
document having special sanctity. The term written constitution shows complete single document.
 Unwritten constitution on the other hand is one which has grown up on the basis of custom rather
than of written law. It is found in different documents.
Rigid/flexible, Conditional/unconditional Classification
 If the amendment or alteration procedure of a constitution is not made to depend on some
conditions or special procedures, then it may be called flexible constitution.
 If some conditions or a special procedure has to be met before the amendment of a constitution,
then it is a rigid constitution.
 Thus, flexible constitutions have elasticity as they can be bent and altered in form without any
need to fulfill some conditions while retaining their main features. Rigid constitutions, on the
other hand, are those whose lines are hard fixed.

 By looking at the Nature of the State itself: Federal/Unitary classification

 In a federal constitution, powers of governments are divided between government for the whole
and governments for parts of the country in such a way that each government is independent and
none is subordinate to the other, and legislature in both cases have limited powers.
 In a unitary constitution on the other hand, the legislature of the whole country is the supreme
law-making body and it has the mandate to allow other legislatures to exist and exercise their
powers while reserving the right to overrule them as they are subordinate to it.

 By looking at the nature of the Government itself: Presidential/Parliamentary Classification and

Republican/Monarchical Classification
Presidential/Parliamentary Classification
 If the executive is immediately answerable to the parliament, then it can be called
parliamentary executive.
 But if it is immediately responsible at definitely arranged intervals to some wider body and is
not amenable to removal by the action of the legislature, then it is called presidential executive.

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  Differently stated, in constitutions that provide for presidential executive, there is a rigid
separation of institutions from the bottom upwards. Hence the president and his subordinates
may not sit in the congress (legislature).
 In constitutions that provide for parliamentary executive, although the great majority of the
members of the executive (civil servants and office holders) are excluded from the parliament,
the heads of department and ministers may sit in the parliament and hence may be accountable
to the parliament.
Republican/Monarchical Classification
 where the head of state is a president, then that state is a republic,
 Where the head of state is a king, that state is a monarchy or a kingdom.

 By looking at the Legislature

 Unicameral/ Bicameral/ Tricameral/ Tetracameral
Unicameralism
 Unicameralism is the practice of having only one legislative or parliamentary chamber. Many
countries with unicameral legislatures are often small and homogeneous unitary states and
consider an upper house or second chamber unnecessary.
 Unicameral legislatures were and are also common in Communist (like People's Republic of
Poland, People's Republic of China and Cuba) and former Communist states (like Ukraine,
Moldova and Serbia),
Bicameralism
 For example. The upper house would have states represented equally, and the lower house would
have them represented by population.
Tricameralism
 Tricameralism is the practice of having three legislative or parliamentary chambers. It is
contrasted to unicameralism and bicameralism, both of which are far more common.
 The term was used in South Africa to describe the Parliament established under the apartheid
regime's new Constitution in 1983. Other instances of tricameral legislatures in history include
Simón Bolívar's model state. The word could also describe the French States-General, which had
three 'estates'.
 South African tricameralism
 The South African tricameral parliament consisted of three race-based chambers:
 House of Assembly — 178 members, reserved for whites
 House of Representatives — 85 members, reserved for Coloured, or mixed-race, people
 House of Delegates — 45 members, reserved for Asians

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 Tetracameralism
 Tetracameralism (Greek tetra, four + Latin camera, chamber) is the practice of having four
legislative or parliamentary chambers. It is contrasted to unicameralism and bicameralism, which
are far more common, and tricameralism, which is rarely used in government.
 Medieval Scandinavian deliberative assemblies were traditionally tetracameral, with four estates;
the nobility, the clergy, the burghers and the peasants. The Swedish and Finnish Riksdag of the
Estates maintained this tradition the longest, having four separate legislative bodies.
The Upper House
 An upper House is one of two chambers of a bicameral legislature, the other chamber being the
lower house.

 Features
 An upper house is usually distinct from the lower house in at least one of the following respects:
 It is given less power than the lower house, with special reservations, e.g. only when seizing a
proposal by evocation, not on the budget, not the house of reference for majority assent.
 Only limited legislative matters, such as constitutional amendments, may require its approval.
 'Houses of review', in that they cannot start legislation, only consider the lower houses' initiatives.
Also, they may not be able to outright veto legislation.
 In presidential systems, the upper house usually has the sole power to try impeachments against
the executive following enabling resolutions passed by the lower house.
 Composed of members selected in a manner other than by popular election. Examples include
hereditary membership or Government appointment.
 Used to represent the states of a federation.
 Fewer seats than the lower house (or more if hereditary).
 If elected, often for longer terms than those of the lower house; if composed of peers or nobles,
they generally hold their hereditary seats for life.
 Elected in portions for staggered terms, rather than all at once.
Lower House
 A Lower House is one of two chambers of a bicameral legislature, the other chamber being the
upper house. Despite its theoretical position "below" the upper house, in many legislatures
worldwide the lower house has come to wield more power.
 The supremacy of the lower house usually arises from special restrictions placed (either
explicitly by legislation or implicitly by convention) on the powers of the upper house, which
often can only delay rather than veto legislation or has less control over money bills.

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  Under parliamentary systems it is usually the lower house alone that designates the head of
government or prime minister, and may remove them through a vote of no confidence. There are
exceptions to this however, such as the Prime Minister of Japan, who is formally selected with the
approval of both houses of the Diet. A legislature composed of only one house is described as
unicameral.

 Common attributes
 In comparison with the upper house, lower houses frequently display certain characteristics:
 Given greater power, usually based on restrictions against the upper house.
 Directly elected (apportionment is usually based on population).
 Given more members.
 Elected more often, and all at once.
 Given total or original control over budget and monetary laws.
 Able to override the upper house in some ways.
 In a presidential system, given the sole power to impeach the executive (the upper house then has
to try the impeached.

 By looking at the nature of the Executive

 Monosepalous Executive
 The best typology in this respect is the kind of executive we find in Britain parliamentary or
cabinet form of government (executive).
 The Prime Minister is not a mere spokesman of the Council of Minster, but its leader. As a
leader, it is the Prime Minister who determines the agenda of the Council of Ministers. This
means the power to determine the priority of governmental action at any one time is in his hands.
 It‘s the Prime Minister who initially organizes the Council of Ministers,
 In addition to this, the Prime Minster is assisted by numerous experts of various
professions in the office of the secretariat.
 Bicephalous Executive
 The 1958 reformulated constitution of France has created an executive with two heads, i.e.
the President and Prime Minister. The President is elected for seven years and has a lot of
executive power.
 The Prime Minister, on the other hand, is appointed by the president for five years.
 The president is required to appoint the Prime Minister who owns the largest vote.

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  Thus, the Prime Minister owes his position primarily to electorates which make him a
contending power owner.
 Reflections on the Ethiopian Constitution
 In traditional Ethiopia, no written constitution in the modern sense of the term formed the basis
for constitutional process.
 Fetha - Negest, which regulated the secular and religious aspects, the Kibre Negest which served
the politico - religious needs of the day, the Serate Mengist of the nineteenth century which
provided for certain administrative matters and protocol directives useful to the constitutional
process.
 Thus, we can say that Ethiopia had no written constitution prior to 1931. But this doesn‘t signify,
as per our discussion on written/unwritten constitution dichotomy, the absence of a constitution as
Ethiopia had a sophisticated traditional unwritten constitution.
 Those unwritten constitutions embraced the ideals of monarchy, an imperial court system
involving monarchy, the church, and the nobility, in an complicated power relationship.
 That succession to the throne hinges on two requirements-dynastic (Solomonic dynasty) claim
and the monarchy‘s profession of the Orthodox Christian faith (the requirement of anointment by
the church) - is sufficient proof for the existence of an unwritten principle (constitutional in
essence).
 We can also cite several other traditional constitutional principles such as the office of the Abun
(head of the Ethiopian Orthodox church), male succession to the throne etc are proof enough for
the existence of traditional (unwritten) constitution.
 The constitution institutionalizes the ministerial system wherein collective and individual
ministerial responsibilities resided in the person of the emperor thereby rendering the
centralization of power inevitable.
 When we come to the judiciary, the 1931 constitution belongs to the second category, i.e., the
prerogative state in which the executive is under the protective shield of a special system of
administrative law, as the constitution in its Art. 54, clearly states that suits related to
administrative affairs are entertained by a special court staffed by judges withdrawn from the
jurisdiction of other courts.
 More or less, we can say the same thing about the 1955 constitution except that the country
adopted a federal form of government as of the federation of Eritrea to Ethiopia by the resolution
of the UN General Assembly on the 2nd of Dec. 1950.
 The 1987 PDRF constitution is also written and codified constitution rendering the country a
unitary state in which all nationalities live in equality.

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  The constitution had conferred ultimate state power on the National Shengo and its Standing
Council.
 It also endorses a unicameral parliament.
 A three fourth majority decision of members of the National Shengo has to be obtained in order
to amend the constitution.
 Coming back to the 1995 FDRE constitution, in much the same way as its predecessors, this
constitution is a written and codified document having 106 articles.
 Just like the PDRE constitution, the incumbent constitution provides for a republican form of
government although the former provides for a unitary single-party system and the later provides
for a federal multi-party system.
 The 1995 constitution establishes a parliamentary democracy.
 The constitution also provides for a bicameral/two-chamber parliament, namely the House of
Peoples‘ Representatives and the House of Federation both of which are federal houses.
 It also provides for a one chamber State Council at State level which is the highest organ of State
authority as much as the House of Peoples‘ Representatives is the highest authority of the federal
government.
 The other chamber, i.e., the House of Federation which is composed of representative of nations,
nationalities and peoples is entrusted with the power to interpret the constitution and to decide on
serious constitutional concerns such as the right to secession.
 When we come to the amendment procedure of the constitution, we find it to be a rigid
constitution as it puts in place a stringent requirement for amendment.

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 CHAPTER FIVE

FORMS OF GOVERNMENT AND ELECTORAL SYSTEMS

 Generally, there are two forms of governments: these are presidential and Parliamentary forms of
governments.
The presidential system
 The presidential system, also called the congressional system, is a system of government where
an executive branch exists and presides (hence the name presidential) separately from the
legislature.
 Under this political system the president is both the Head of State and the Head of Government.
 Thus in the presidential system, the president is said to enjoy a direct mandate from the people
and hence is not accountable to the parliament and the latter cannot dismiss him have on
exceptional grounds through a process known as impeachment.

 Features
 Although presidential governments in different countries have certain differences, nearly all
presidential systems share the following features.
 In a presidential system, there is no distinction between the positions of the Head of State and
Head of Government both of which are held by the president.
 That is, the president is the Head of State and the Head of Government and hence the chief
executive.
 He has the mandate to administer the country and appoint or remove executive officers and thus
can effectively control government department.
 Heads of government departments, ministers, commissioners, or secretaries are under the
president.
 The president enjoys ultimate power decision and, therefore, has complete political responsibility
for all executive actions.
 In such systems the president appoints secretaries who are heads of his executive departments. In
other words, the executive branch is uni-personal. Members of the cabinet serve at the pleasure of
the president and must carry out the policies of the executive and legislative branches.
 In presidential system, the executive branch, headed by the president, is distinct from other
branches of the government which are all independent from one another.
 This separation of power serves to check and balance the powers of the three branches of
government.

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  While members of the legislature are elected, the members of the cabinet are appointed by the
president and may require the confirmation or consent of the legislative branch.
 The president has a fixed term of office/tenure and his government has a fixed tenure. Thus, he
cannot be removed or dismissed from office before the expiry of his term unless under highly
unusual and exceptional process of impeachment.
 The president can be removed from office only through death, resignation, inability to discharge
his responsibilities, or by congressional impeachment and conviction on charges of treason,
bribery, or other serious crimes.
 The president could be elected directly by the people or by an electoral college, a system of
electing a president or another representative or leader by a group of persons who are elected
from the people for the purpose of electing the president or another leader.
 The president is not accountable to the legislature. Instead, he is accountable to the constitution.
Presidential governments make no distinction between the positions of head of state and head of
government both of which are confided in the person of the president.

 Merits and Demerits

 Merits
 The first advantage of presidential government is the fact that the executive is stable by virtue of
a fixed term. Since the existence of the executive doesn‘t depend on parliamentary whim, it is
more stable than a prime minister (in parliamentary form of government) who can be dismissed at
any time.
 By way of making more than one electoral choice, voters in presidential system can more
accurately indicate their policy preferences. In the United States, for instance, some political
Scientists interpret the late cold war tendency to elect a Democratic Congress and a Republican
President as the choice for a Republican foreign policy and a Democratic domestic policy.
 The existence of separation of powers is another advantage of this system.
 The other advantage of this system is that the president can recruit ministers of highest caliber as
he can appoint his ministers from people who do not belong to the legislature. This is so because
the president selects persons of greater competence and integrity without any need to make
political considerations or party affiliations.
 Demerits
 Although the president‘s fixed tenure has its own advantages, it has disadvantages as well
because it brings with it the difficulty in removing an unsuitable president from office before
his/her term has expired.

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 Parliamentary System
 Parliamentarism, is a system of government in which the executive is dependent on the direct or
indirect support of the legislature
 A parliamentary system of government is a government that is led by a party or a coalition of
parties that has the largest number of seats in the parliament.
 Absence of clear-cut separation of power between the executive and the legislative is the main
characteristic of this system.
 They usually have a distinct heads of state and head of government,
 The parliamentarianism does not necessarily imply multi-party arrangements are usually the
outcomes of an electoral system known as proportional Representation.

 Features
 In parliamentary system it is the prime minister who has effective control over the executive as he
is the chief executive. He/she deals with the day-to-day political activities.
 The head of state, on the other hand, has such roles as symbolic role, chief diplomatic officer,
nominal chief executive officer, chief appointments officer, legislative role (formality-signing on
bills passed by the legislature), and other prerogative such as pardon/amnesty and granting
various titles and other honors.
 In parliamentary system, ministers are members of the parliament although not the case in all
countries.
 A political party or coalition of parties, as the case may be, which has the largest seat in the
parliament will constitute a government.
 The leader of the party which has won the majority seat in the parliament will become a prime
minister and the latter would, then, form his/her cabinet by nominating either from among the
parliamentarians or from outsiders whom he believes are competent enough to discharge their
responsibilities.
 In the parliamentary system, the government has no fixed tenure.
 But this is a very rare occurrence as party discipline is very strong in this system although the
executive is answerable to the parliament.
 The executive in a parliamentary system is responsible to the legislature: the legislature conducts
control over the executive‘s function nearly on a day-to-day basis.
 Members of the council of ministers may be required to report, respond to questions, etc. to the
legislature whenever they are requested to do so.

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 Merits and Demerits
 Merits
 The executive is better placed to execute the legislations passed by the House and deliberations
are not stringent as the ministers can effectively influence the course of the discussion. (ease of
legislation).
 This system, therefore, is preferable for countries with an infant democracy as it allows
coordination of the executive and the legislative which could in turn result in an effective
implementation of the programs and policies of the executive.
 It is a lot easier to pass legislations; this is because the executive branch is dependent upon the
direct or indirect support of the legislative branch and often includes members of the legislative.
 On top of the ease for quicker legislative action, parliamentarianism has attractive features for
nations that are ethnically, racially, or ideologically divided.
 In presidential system, all executive power is vested in the president. In parliamentary system,
however, with a collegial executive, power is more divided.
 Demerits
 The fact that the Head of Government is not directly elected is one of the critiques staged against this
form of government.
 Parliamentary system, unlike the presidential system where the president is elected by the public,
the prime minister is elected by the legislature often under strong party influence.
 Absence of clear distinction /separation of power between the executive and the legislative is
another criticism.
 In other words, lack of inherent separation of powers places too much power in the executive.

 Electoral systems
 Meaning and features of election
 An election is a decision making process by which a population chooses an individual to hold
formal offices. It is the usual mechanism by which modern democracy fills offices in the
legislature, sometimes in the executive and judiciary, and for regional and local governments.
 According to Jean Kirkpatrick, scholar and former United States Ambassador to the United
Nations, ―Democratic elections are not merely symbolic they are competitive, periodic, inclusive,
definitive elections in which the chief decision makers in a government are selected by citizens
who enjoy broad freedom to criticize government, to publish their citizens‘ criticism and to
present alternatives.

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 Types and Features of Electoral systems
Majoritarian Representation systems
 This is the oldest and simplest electoral system, in which a candidate in whose favor a majority of
votes are cast is returned to office. There are many variants of the Majoritarian system, the most
prominent of which is simple majority (relative majority) also known as First Past the Post (FPP)
and Absolute Majority.
 The term First Past the Post was coined as an analogy to horse racing, where the winner of the
race is the first who gets past a particular point on the track and the rest runners automatically and
completely lose the race.
 In the case of absolute majority, however, a candidate will be declared a winner only if he/she
gets an absolute majority of votes (50 percents +).
 If there is no candidate that has met this minimum requirement, a second round is held between
the two candidates who get the highest number of votes and the one who gets the least number of
votes will be excluded.
Proportional Representation system
 Under Proportional Representation, political parties or candidates will have the percent of seats
that reflect their support.
 Proportional representation has such advantages as greater voter turn-out (typically 70-80%)
owing to the more choices for voters which in turn lead to more diverse representation.
 Reflection on the Ethiopian Legal Regime
 Although Ethiopia had written constitution as early as 1931, members of two chambered parliament established by the
constitution did not assume their seats by election.

 Members of the upper chamber- the senate were handpicked/appointed by the emperor from among the nobility
(mekuanint) and local chiefs (‗shumoch‘) who served the empire as ministers, judges or military officers. Members of
the lower chamber, on the other hand, were elected by the nobility and local chiefs.

 It was only in 1955 that the idea of election was introduced by the revised constitution as members of the lower
chamber begun to assume seats through election. Since the coming into existence of the revised constitution, various
laws meant to regulate the country election procedure were issued.

 The first electoral law was issued on the 27th day of August, 1956. This law established a National Board for
registration and elections and determined the powers and duties of the Board.
 Finally, when we come back to the system of election followed by Ethiopia, we find on Art. 13 of the Proclamation that:-

 Any election shall be based on free, direct, and popular suffrage.

 A candidate with more votes received than that by other competitors within the constituency be declared the winner.
 What one can easily discern from the reading of sub Article 2 of the above article is that the proclamation endorses the
First-past-the-post system of election where in a candidate with plurality of votes will be returned to office.

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 CHAPTER SIX

MAKING THE CONSTITUTION ADJUSTABLE

 Interpretation of a Constitution
 Methods of Constitutional Interpretation
 Most legal scholars recognize six main methods of interpretation: textual, historical, functional,
doctrinal, prudential, equitable, and natural, although they may differ on what each includes, and
there is some overlap among them.
 Textual. Meaning of words may be ascertained by associated words.
 Historical. No one can properly understand a part until he has read the whole.
 Doctrinal. Decision based on the prevailing practices or opinions of legal professionals,
mainly legislative, executive, or judicial precedents, according to the meta-doctrine of
stare decisis, which treat the principles according to which court decisions have been
made as not merely advisory but as normative.
 Prudential. Decision based on factors external to the law or interests of the parties in the
case, such as the convenience of overburdened officials, efficiency of governmental
operations, avoidance of stimulating more cases, or response to political pressure.
 Equitable. Also called ethical: - Decision based on an innate sense of justice, balancing
the interests of the parties, and what is right and wrong, regardless of what the written
law might provide. Some scholars put various balancing tests of interests and values in
the prudential category, but it works better to distinguish between prudential as balancing
the interests and values of the legal system from equitable as balancing the interests and
values of the parties. Equity is a sort of perfect reason which interprets and amends
written law; comprehended in no code, but consistent with reason alone.
 Natural: - Decision based on what is required or advised by the laws of nature, or
perhaps of human nature, and on what is physically or economically possible or practical,
or on what is actually likely to occur.
 Rights and powers are complementary. Every right recognized by the Constitution is immunity, that is, a
right against a positive action by government, and is equivalent to a restriction on delegated powers.
Conversely, every delegated power is a restriction on immunities. An immunity may be expressed either as
a declaration of the right, or as a restriction on powers.
 Original "intent" is functional, not motivational. The private motives of the framers or founders are
irrelevant and largely unknowable, and likely to have been diverse.

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  The common law rule of interpretation understood by the founders was to discern the functional role of
elements of the law, not the private purposes of the lawgivers.
 The ratification debates are the best evidence of original understanding. The arguments of those opposed to
ratification are not just the positions of the losers in the debates, which some might dismiss as not
indicative of original understanding. As the debates proceeded, understandings evolved and clarified, and
positions changed.
 Powers are narrow, rights broad. The entire theme and tenor of the ratification debates was that delegated
powers were to be interpreted as strictly as possible, consistent with the words and rights as broadly as
possible, with the presumption in favor of the right, and the burden of proof on those claiming a power.
Potestas stricte interpretatur. A power is strictly interpreted. In dubiis, non præsumitur pro potentia. In
cases of doubt, the presumption is not in favor of a power.
 The power to regulate is not the power to prohibit all modalities of something. It is only the power to issue
prescriptions to "make regular", enforceable only by deprivations of property or privileges, not of life, limb,
or liberty. There must always be some modality that is not prohibited.
 Amendment of a Constitution
 An amendment is a change to the constitution of a nation or a state. In jurisdictions with "rigid" or
"entrenched" constitutions amendments require a special procedure different from that used for enacting
ordinary laws.
 Amendment procedures
 A flexible constitution is one that may be amended by a simple act of the legislature, in the same way as it
passes ordinary laws.
 The constitutions of a great many nations provide that they may be amended by the legislature, but only by
a special, extra-large majority of votes cast (also known as a supermajority, or a "qualified" or "weighted"
majority). This is usually a majority of two-thirds the total number of votes cast.
 In a bicameral parliament it may be required that a special majority be achieved in both chambers of the
legislature.
 Some constitutions may only be amended with the direct consent of the electorate in a referendum. In some
states a decision to submit an amendment to the electorate must first be taken by the legislature.
 Form of changes to the text
 The manner in which constitutional amendments are finally recorded takes two main forms. In most jurisdictions,
amendments to a constitution take the form of revisions to the main body of the original text.

 Thus once an amendment has become law, portions of the original text may be deleted or new articles may be inserted
among existing ones.
 The second, less common method is for amendments to be appended to the end of the main text in the form of special
articles of amendment, leaving the body of the original text intact. Although the wording of the original text is not
altered, the doctrine of implied repeal applies. In other words, in the event of conflict, an article of amendment will
usually take precedence over the provisions of the original text, or of an earlier amendment.

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CONSTITUTION II

CHAPTER ONE

DEVELOPMENT OF DOCUMENTARY CONSTITUTION

 Ancient and Medieval Documents of Constitutional Nature:

The Ser‟ata Mengist
 The Ser‘ata Mangist can hardly be considered to be a document of Constitutional Law in its
widest sense.
 The leader being crowned used to be referred to as ‗Atse‘ meaning King or ‗Niguse Negest‘
meaning King of Kings.
 The most real decrees of the Sar‘ata Mangist were:
 King‘s Coronation;
 According to a custom initiated by King Amda Seyon, the daughters of Zion bar – the
way of the new King with a rope when he goes to Axum to be crowned, and
 Queen‘s coronation (on Sunday‘s);
The Fetha Nagast
 Law of the Kings‘, is a collection of laws which in use in Christian Ethiopia for many centuries. It
was originally written in Arabic by the Coptic Egyptian writer Abu-l Fada‘il Ibn al-
Assal(commonly known as Ibn al-‘Assal.

 The Classical Gada System

 The Gada system of the Borena Oromo‘s is one of the Neolithic social systems practiced by
indigenous nationalities of Ethiopia proper. For the purpose of clarifying its attributes to the Law
of Constitution, we make a short note of the Gada system.
 The Borena Gada system represents a structure of :-
 A society that is stratified into two. Cross-cutting systems of peer-group structures. One on the
basis of chronological age the harriya system. The other. On the basis of genealogical ties gada
syste. Both sets of groups pass from one stage of development to the next every eight years. while
newly born infant boy always enters the system of grades exactly forty years behind the father,
regardless of the age of the father.

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 CHAPTER TWO

DIMENSIONS IN RESPECT OF NATION, NATIONALITY AND PEOPLES OF ETHIOPIA

 Putting the Conflict in Perspective

 Multi-ethnic society can survive only if all respective groups within the polity feel themselves as
winners.
 Building Multi-Cultural Democracies
 Ethnicity, Nationalism and Multicultural States
 Ethnicity is a state of mind emanating from feeling of separate identity, based, more importantly
on the myth of common descent.
 Nationalism combines shared common identity, feeling of distinctness from other nationals,
concerted political action to these ends. It also has the objective of attaining some level of
statehood.
 As building and/or enhancing the nation can be achieved by advancing political values like
democracy, economic welfare, especially in a multicultural federal system that should be done by
entrusting only those commonly shared interests to the federal state.
 The Position of FDRE Constitution of Nation Nationality and Peoples
Here Abera Degafa writes:-
 From the text of the Constitution, the right of Nations, Nationalities and Peoples seem to occupy
a central place. For example, the opening words of the Preamble read ‘We, the Nations,
Nationalities and Peoples of Ethiopia. The Preamble identifies the Nations, Nationalities and
Peoples of Ethiopia as the authors of the Constitution. In addition, the provisions of the
Constitution dealing with the rights of Nations, Nationalities and Peoples of Ethiopia are made
difficult to amend and even during a state of emergency these rights may not be suspended,
although many other rights can be.
 The Constitution declares that the fundamental rights and freedoms specified in the Constitution
shall be interpreted in a manner conforming to the principles of the Universal Declaration of
Human Rights, International Covenants on Human Rights and international instruments adopted
by Ethiopia.
 In the following sub-sections, the rights of Nations, Nationalities and Peoples of Ethiopia as
provided in the scope of their rights.
 But in order to do that, having the general overview of the Nations, Nationalities and Peoples
living in Ethiopia is necessary.

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 Minorities in the Context of Nations, Nationalities and Peoples
 ‗Minorities‘ is a term that defies simple literal definition. The dictionary meaning of the term
minority is ‗the condition or fact of being small, inferior, or subordinate. If we give the term the
simple literal interpretation, almost all communities existing within a State can easily be taken as
minorities. Since minorities usually appear in various forms and sizes, it is possible for any
person to belong to a minority. For example, cultural groups, social classes, persons belonging to
a group of particular profession, immigrants, refugees and nearly all communities within a state
could be styled minorities.
 Indigenous communities, peoples and nations are those which, having a historical continuity with
pre-invasion and pre-colonial societies that developed on their territories, consider themselves
distinct from other sectors of the societies now prevailing on those territories, or parts of them.
They form at present non-dominant sectors of society and are determined to preserve, develop
and transmit to future generations their ancestral territories, and their ethnic identity, as the basis
of their continued existence as peoples, in accordance with their own cultural patterns, social
institutions and legal systems.‘

 The Agenda of the Then, Today and Tomorrow

 Where citizens, in addition to their identification with their country, might also feel a strong sense
of identity with their community – ethnic, religious, linguistic and so on.
 Most states feared that the recognition of such variance would lead to social fragmentation and
prevent the creation of a harmonious society.

 In short, such identity politics was considered a threat to state unity.

 So many states in the past had usually resorted to either suppressing these diverse identities, or ignoring
them in the political domain.
 Centralization of political power, eliminating forms of local sovereignty or autonomy historically enjoyed
by minority groups, so that all important decisions are made in forums where the dominant group
constitutes a majority.
 Construction of a unified legal and judicial system, operating in the dominant group‘s language and using
its legal traditions, and the abolition of any pre-existing legal systems used by minority groups.
 Adoption of official-language laws, which define the dominant group‘s language as the only official
national language to be used in/at each levels of the bureaucracy, courts, public services, the army, higher
education and other official institutions.

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  Construction of a nationalized system of compulsory education promoting standardized curricula and
teaching the dominant group‘s language, literature and history (favoring the dominant group‘s wishes) and
defining them as the ‗national‘ language, literature and history (,accordingly).
 Diffusion of the dominant group‘s language and culture in particular through national, cultural institutions,
including state-run media and public museums.
 Adoption of state symbols celebrating the dominant group‘s history, heroes and culture; reflected through
preferential treatment on such things as choice of national holidays or the naming of streets, buildings and
geographic characteristics.
 Seizure of lands, forests and fisheries from minority groups and indigenous people and declaring them
‗national‘ resources.
 Adoption of settlement policies encouraging members of the dominant national group to settle in areas
where minority groups historically resided.
 Adoption of immigration/emigration/ policies that give preference to immigrants/emigrants/ who share the
same language, religion or ethnicity as the dominant group.
 The strategies of assimilation and integration sometimes worked to ensure political stability, while, at
times, could be accomplished by putting at risk a great amount of human cost and denying of human
choice. At worst, coercive simulation might be employed that ultimately could lead to genocidal assaults or
expulsion of some groups.
 In today‘s world of increasing democratization and global networking, policies that deny cultural freedoms
are less and less acceptable. People are increasingly assertive in protesting assimilation without choice.
Assimilation policies were easier to pursue with illiterate peasant populations.
 Efforts to allege today in any case the historical evidence suggests that there need be no contradiction
between a commitment to one national identity and recognition of diverse ethnic, religious and linguistic
identities.
 Redressing the cultural exclusion of minorities and other marginalized groups requires more than providing
for their civil and political freedoms through instruments of majoritarian democracy and equitable socio-
economic policies. It requires explicit multi-cultural policies to ensure cultural recognition.
 This part explores the fact how states are integrating cultural recognition into their human development
strategies in five areas:
 Policies for ensuring the political participation of diverse cultural groups.
 Policies on religion and religious practices.
 Policies on Customary Law and legal pluralism.
 Policies on the use of Multiple Languages
 Policies for redressing socio-economic exclusion.

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 Proposition: Policies for Ensuring the Political Participation of Diverse Cultural Groups
Article 46- States of the Federation
1. The Federal Democratic Republic shall comprise of States.
2. States shall be delimited on the basis of the settlement patterns, language, identity and consent of
the people concerned.
 Democracy is often required. Several models of multicultural democracies have developed in
recent years that provide effective mechanisms of power sharing between culturally divers
groups, thereby ensuring the rights of diverse cultural groups and preventing violations of their
rights through imposition of simplified model of majoritarian rule or unnecessary political
dominance of the ruling elite.
 There are two broad categories of democratic arrangements in which culturally diverse groups and
minorities can share power within political processes and state institutions.
 The first involves sharing power territorially through federalism and its various forms. Federalism
is a system of political organization based on a constitutionally guaranteed balance between
shared-rule and self-rule.
 It involves at least two levels of government, namely a central authority and its constituent
regional units.
 The Constituent units enjoy autonomy and power over constitutionally defined subject-matters;
 They can also play a role in shaping the policies of the central government.
Coming together or Bonding together:-
 In ―coming together‖ federal arrangements, is when the regions choose to form a single federal
polity.
 In holding together :-
 Arrangements, the central government devolved political authority to the regions to maintain a
single unified state.
 One identity or many:-
 Mono-national or ―national‖ federations assert a single national identity.
 Multi-national‖ federation :-
 Constitutionally recognize multiple identities. Other states combine the two. India and Spain
assert a single national identity but recognize plural aspects of their heterogeneous poli (diverse).
Symmetric or Asymmetric:-
 In symmetric federalism the constituent units have identical, that is symmetric, powers, relations
and obligations relative to the central authority and each other; example, as in Australia.

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  In asymmetric federalism some provinces enjoy different powers. In Canada, fore example,
asymmetric federal powers provided a way of reconciling Quebec to the federal system by
awarding it specific powers connected to the protection and promotion of French-Canadian
language and culture.
 The second category of arrangement involves power sharing:-
 Through consociations; i.e. using a series of instruments to ensure the participation of culturally
diverse groups dispersed throughout the country. These arrangements address claims made by
groups that are not territorially concentrated or do not demand autonomy or self-rule.
Consociations are based on the principle of proportionality: the ethnic or cultural composition of
the state. Achieving proportionality requires specific mechanisms and polices. Electoral
arrangements such as proportional representation can better reflect group composition, as can the
use of reserved seats and quotas in the executive and legislature.

 Power Sharing through Federal Arrangements: Asymmetric Federalism

 Federalism provides practical ways of managing conflict in multi-cultural societies through
democratic and representative institutions, and of enabling people to live together even as they
maintain their diversity.
 Such ―asymmetric‖ federal systems, the powers granted to subunits are not identical. Some
regions have different areas of autonomy from the others.

 Policies on Religion and Religious Practices

Article 11-Separation of State and Religion
1. State and Religion are separate.
2. There shall be no state religion.
3. The state shall not interfere in religious matters and religion shall not interfere in state
affairs.
 Sometimes the arguments for women‘s rights and principles of equality get entangled
with concerns for minority rights and cultural recognition.
 Gender Equality – how patriarchal customs and laws, be they Hindu or Muslim, treat men and women
differently in terms of their legal entitlements.
 Cultural Freedoms and Minority Rights – whether the state should reserve the right to intervene in
matters of religious practice to assert natural rights while at the same time protecting the right of
groups to practice their religion.

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 Policies on Customary Law and Legal Pluralism
Article 91(Sub 1)-Cultural objectives
 Government shall have the duty to support, on the basis of equality, the growth and enrichment of
cultures and traditions that are compatible with fundamental rights, human dignity, democratic
norms and ideas and the provisions of the Constitution.
Article 34(Sub 4 & 5)- Marital, Personal and Family Rights
 (4) In accordance with provisions to be specified by law, a law giving recognition to marriage
concluded under systems of religious or customary laws may be enacted.
 (5) This Constitution shall not preclude the adjudication of disputes relating to personal and
family laws in accordance with religious or customary laws, with the consent of the parties to the
dispute. Particulars shall be determined by law.
 Certain religious and ethnic minorities and indigenous groups feel alienated from the large legal
system for a number of reasons.
 In many countries indigenous people are almost entirely unrepresented in the judiciary.
 From a human development perspective all legal systems – whether unitary or plural – must
conform to international standards of Human Right, including gender equality. Some critics,
therefore, argue that if the legal system of the larger society respects Human Rights norms, there
is no need to maintain legal pluralism. However, even where there is a consensus on Human
Rights norms, there may still be a valuable role for legal pluralism.
 Plural legal systems existed in almost all societies; evolving as local traditions, these were
historically accommodated, also with other formal systems of jurisprudence. Customary
practices, which acquired the force of law over time, coexisted alongside introduced systems of
jurisprudence.
 Such legal pluralism often had roots in the colonial logic of protection of minority rights, which
allowed certain customary systems to continue while imposing the colonizer‘s own laws.
 Accommodating Customary Law can help protect the rights of indigenous people and ensure a
fairer application of the rule of law. Efforts to accord public recognition to Customary Law can
help create a sense of inclusion in the wider society.
 Often the most pragmatic case for Customary Law, especially in parts of failed states, is that the
choice is between Customary Law and no law.
 Recognizing the ability of indigenous people to adopt and administer their own laws is also a
repudiation of historic prejudice – and can be an important part of self-government for indigenous
people.

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 Policies on the use of Multiple Languages
Article 5- Languages
1. All Ethiopian languages shall enjoy equal state recognition.
2. Amharic shall be the working language of the federal Government.
3. Members of the federation may by law determine their respective working languages.
4. ―Let us each retain our own language in certain spheres, such as schools and universities, but let
us also have a common language for joint activities, especially in civil life.‖
 In multilingual societies a multiple language policy is the only way to ensure full democratic
participation.
 In addition to issues of language use in national institutions, there is also a risk that national
information media could be monopolized by speakers of one (or two) dominant languages.

 Polices for Redressing Socio-Economic Exclusion

Article 35(Sub 3)-Rights of Woman
 ―…woman in Ethiopia … are entitled to affirmative measures. The purpose of such measures
shall be to provide special attention to woman so as to enable them compete and participate on
the basis of equality with men in political, social and economical life as well as in public and
private institutions.
Article 89(Sub 4)- Economic Objectives
 Government shall provide special assistance to Nations, Nationalities and Peoples least
advantaged in economic and social development. (Emphasis added)
 Addressing unequal social investments to achieve equality of opportunity;
 Recognizing legitimate collective claims to land and livelihoods and
 Taking affirmative action in favor of disadvantaged groups

 Addressing Unequal Social Investments to Achieve Equality of Opportunity

 Policies that promote growth of equity are necessary to achieve socio- economic inclusion for all
groups. For most developing contrives this would include investing in the agricultural and other
labor intensive sectors and broadening access to assets, especially agricultural land. But too often,
development policies become a source of inter-group tension. In other words, development itself
can create, sustain and often intensify inequalities between groups and between individuals.

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 Taking Affirmative Action in Favour of Disadvantaged Groups
 Affirmative action policies allocate jobs, promotions, public contracts, business loans, admissions
to higher education and legislative seats on the basis of membership in a disadvantaged group.
Such policies are needed when the disadvantage is under cultural exclusion.

 Typologies of Federations
 Theoretical Foundation of Federalism
 The term ―federal‖ was coined in 1685 by a group of theologians who revived the study of the
holy and everlasting covenant which, from time to time made between god and people. They
derived the term from the Latin word foedus (covenant) using it as the basis for their own
philosophy of life.
 The real meaning of ―federalism‖ refers to an alliance, a treaty, or an oath of allegiance and, by
implication, emphasizes the right of those who share in the covenant to make their own decisions.

 Prerequisites for Federal Associations

 When separate states or communities want to unit on a federal bases, there are two basic
considerations,
 Firstly there must be a strong need and desire to shoulder common interests jointly.
 Secondly there must be an equally strong need and desire to shoulder domestic interests
separately.
 Different types of Federations
 One can differentiate one form of federalism from another on two bases: the first is based on is
origin the second is based on its foundation.
Centripetal and Centrifugal Linking Units
 Centripetal linking is where independent states move closer together to create a federal state.
Most federations have this type of origin, for example the USA and Switzerland.
 Centrifugal linking is where decentralized unitary units are converted into a federation. Usually
unilateral action is initiated by the central authority. At the moment Belgium is in the process of
changing over to a federal system in this way.
 Federal Units
Territorial Units
 Here, it is territorial area that serves as unit of the federation. These areas can again be subdivided
into two kinds, namely city-states on the one hand and states on the other hand.

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 Corporate Units
 Is a type of federalism in which various groups or communities inhabit the same region and
attend to their own domestic interests in accordance with the subsidiary principle, but naturally
co-operate with each other on matters of common concern.
 As far as the composition of the central legislative body is concerned, the various communities
themselves compose the constituent parts or corporations.
 The departure point is that a state such as this does not consist merely to a collection of
individuals but of whole which consists of various collectivities.
Nation Centered Federalism:
 The foundation of the nation centered federalism was laid by Alexander Hamilton in ―The
Federalist‖. His belief in a strong national government was later reinforced by judicial decisions.
 Judicial review was often used as a weapon for, ―keeping the states within bounds‖. The national
government is the government of all, its powers are delegated by all, it represents all and acts for
all‖. It was the court‘s decision in this case that became the source of the ―doctrine of implied
powers‖.
State Centered Federalism:
 ―The powers delegated by the proposed constitution to the federal government are few and defined (article
1). Those which are to remain with the state governments are numerous and indefinite. The former will be
exercised principally on eternal object the powers reserved to the several states will extend to all the
objects, which in the ordinary course of affairs, concern the lives, liberties and properties of the people and
the internal order, improvement and prosperity of the state.
Dual Federalism:-
 ―The federal constitution, so far from intending to make its political spheres morally unequal in powers or
to invest the greatest (union/center) with any species of: sovereignty over the least (states), intended the
very reverse‖.
Cooperative Federalism:
 They consider the possibilities of mutual aid. The most important device of cooperative federalism is that of providing
grants-in-aid to the states. The Federal Government can attach stipulations while granting funds and finally is free to
withdraw the grant whenever it discovers that the state is not complying with the stipulated conditions.
Creative Federalism
 This has all the features of cooperative federalism, yet has some unique elements of its own. It lays emphasis on
cooperation, not only between the federal and state governments but between them and the local units, private
organizations and the public at large. All are regarded as a working team, dedicated to positive action in solving the
problem facing the nation, with perhaps a different combination of forces at work in each different problem area and
with the national government, not always the senior partner.

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Part III

CHAPTER ONE

 FDRE Constitution: Vertical and Horizontal Division of Power (HPR)

 Vertical: - b/n Federal gov‘t and Regional states.
 Horizontal: - b/n State/gov‘t and its organs.
 Form and Scope of Distribution of Powers
Exclusive Powers
 In general, this refers to the powers to be distributed in federal systems falling to one of two main
categories: exclusive powers and non-exclusive powers.
 Traditionally the use of exclusive powers refers to the powers for which the federal constitution
has created a monopoly, which either is in the hands of the federation or of the states.
Shared Legislative Powers
 Shared powers represent the meeting point of the two levels of governments, otherwise
considered exercising exclusive shares of federal and state powers. These powers refer to that
category of powers in which both the federation and the states exercise at some point at least part
of the power.
Framework of Power
 The federal government may use framework legislation to regulate federation wide standards
while leaving the states room to legislate the details and to deliver the services in a manner
adaptable to local situations. The states under this category of powers are allowed to fill in the
gaps with more detailed laws. On the other hand, in Ethiopia Civil Law is the residual power of
the states.
Concurrent Powers
 Article 51(1) provides that the Federal Government shall protect and defend the Constitution.
 From this proposition one may arrive at the following conclusions, namely:
a. Each and every state shall protect and defend its own, respective Constitution.
b. Jointly and severally, states shall protect and defend the FDRE Constitution.
c. The Federal Government shall also be responsible for protecting and defending the respective
Constitutions of each and every state.
 Here, aren‘t (b) and (c) concurrent powers.

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 Residual Powers
 Residual powers represent those powers not listed or partly listed by the Constitution and
assigned to either unit of government.
 The United States, Switzerland, Germany, and Ethiopian Constitutions have preferred to leave
residual powers with the states while in India such powers belong to the center.

 Fiscal Federalism: A General Description

 In brief, the literature on fiscal federalism encompasses: principles of fiscal relations between
central and sub national levels of government that is the command over resources by the various
levels of government and the direction and size of inter-governmental fiscal flows. This includes
the divisions of tax powers and the means through which resources are adjusted to match
expenditure responsibilities for central and sub national levels of government.
 Generally, the study of fiscal federalism focuses on the allocation of expenditure responsibilities,
revenue raising powers and adjusting vertical and horizontal imbalances through
intergovernmental fiscal transfers.

 Division of Revenue-Raising Powers and Responsibilities

 In a federal system, powers allocated to governments could be of two general kinds: functions and
responsibilities to be discharged by each government, and means for affecting these responsibilities.

 General Constitutional Methods in Division of Tax Powers

 The entire revenue sources can be given either to the Centre or to the states, or can be divided
between them.

 Structure of Allocation of Taxation Power in Ethiopia

 The FDRE Constitution divides taxation power into three categories, namely:- a) federal power of
taxation, b)state power of taxation, and c) concurrent power of taxation.
 In Ethiopia, the FDRE Constitution declares that the Federal Government shall levy taxes and
collect duties on sources reserved to it, and the states, likewise, exercise the same power with
respect to sources that fall under their jurisdiction. Thus, the two levels of government exercise
their legislative and administrative powers within their respective spheres of taxation. As a result,
the revenue generated from the respective sources belongs exclusively to each level of government.
Each level of government is bound to respect the powers of the other.

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 Concurrent Power of Taxation
 Several issues arose regarding the exercise of the concurrent power of taxation. Article 98 of the
Constitution states that regional states shall jointly levy and collect revenue.

 Residual Taxes
 Article 99 of the Ethiopian Constitution reads: ―the house of Federation and the House of Peoples‘
Representatives shall, in a joint session, determine by a two-thirds majority vote on the exercise of
powers of taxation which have not been specifically provided for in the Constitution‖.

 Questions that matter

 Do you differentiate between and among
 Concurrent,
 Joint, and
 Shared taxation powers.
 Delegated legislation:-
 Parliament is too busy a body. If it devotes its time in entering into minor and subsidiary details and
attempts to lay down all rules, all its time will be taken over by only a few Acts. The pressure of
time prevents Parliament from providing all the details and, therefore, has to confer on the
executive rule-making powers to supplement the Act.

 Limitation: - is that, essential powers of legislation cannot be delegated. The essential

legislative power consists of the determination or choice of the legislative policy and of
formally enacting that policy into a binding rule of conduct.

 When we see the Ethiopian Constitution, there is a delegation of power at the federal level under
Art 77(13), which stipulates that the Council of Ministers shall enact regulations pursuant to powers
vested in it by the House of Peoples‘ Representatives. But, what about the case at state level? Does
the state council, for example, in the Amhara Region., delegate its legislative power to the state
administration the highest organ of executive power.

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 CHAPTER TWO

HOF AND THE OFFICE OF THE PRESIDENT

 Federations and Second Chambers: HoF

The power of second chambers
 In assessing the legislative power of upper houses in Federal countries, two trends are prominent.
 The first category of upper houses is equally share the power of law making with lower houses. The
consent of both houses is unconditional for a bill to obtain a legal force. The two houses in this
regard are co-equal as no law can be enacted unless both houses agree on the same text.
 The second category of upper houses plays a subsidiary role. Each piece of legislation does not
need the approval of both the lower and upper houses, but the latter make sure that the interests of
the states are taken into account.
 The HF: A non-legislative second chamber
 The FDRE constitution fulfills the minimum requirement of having a second chamber but with a
totally different function. Article 53 states that there shall be two federal houses named the house
of people‘s Representative (HPR) and the House of Federation (HF).
 The power and responsibilities of the House of Federation according the constitution and the
proclamation consolidation the powers and responsibilities of the House of Federation are to:
 Interpret the Constitution;
 Organize the Council of Constitutional Inquiry;
 Decide, in accordance with the Constitution, on issues relating to the rights of Nations, Nationalities
and peoples to self-determination, including the right to secession;
 Promote the equality of the peoples of Ethiopia enshrined in the Constitution, and promote and
consolidate their unity based on their mutual consent.
 Strive to find solutions to disputes or misunderstandings that may arise between states;
 Determine the division of revenues derived from joint federal and State tax sources, and the
subsidies that the Federal government may provide to the States;
 Determine civil matters which require the enactment of laws by the house of peoples‘
Representatives.
 Order the federal Government to intervene if any state threatens the Constitutional order in violation
of the Constitution;
 Determine on the draft proposal of electoral constituencies submitted by the National Election board
based on Article 103/5/ of the Constitution;

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  Determine jointly with the house of peoples‘ Representatives the power of taxation on revenue
sources, in accordance with Article 99 of the Constitution, of which neither the Federal nor the State
governments have responsibility.
 Elect the president of the country in a joint session with the House of peoples‘ Representatives in
accordance with Article 70/2/ of the constitution.
 Participate in the process of the Constitutional amendment as stipulated in sub-Article (I) and (2) of
Article 105 of the Constitution:
 In collaboration with others, offer education and training, and whenever necessary, carry out
research in matters pertaining to its responsibilities
 Establish permanent and ad hoc committees of the House;
 Elect the speaker and Deputy Speaker of the house
 In this long list of the house of Federations powers and responsibilities, the only provisions we can
trace legislative functions are Article 99, 62(7) and 105.
 To determine undesignated power of taxation (concurrently with the House of People‘s
Representative)
 To determine the division of revenues derived from joint Federal and State tax sources, and the
subsidies that the Federal government may provide to the States;
 To amend the constitution.
Tenure
 If we examine the Ethiopian constitution, the House of Federation as the house of people‘s
Representative is dissolved every five years. Furthermore, the election year for both the HPR and
HF is congruent. As type of government is parliamentary democracy, the executive will also
leave office and the ceremonial president is the only individual holding office between
parliamentary elections. This clearly creates a power vacuum which could be a bodied if the
terms of the HF and HPR are separated and the HF made a permanent institution which is not
subject to total dissolution.
 Judicial review by ordinary judiciary
Principle
 Judicial review is the power of courts to pass judgment upon the constitutionality of the
legislative acts which fall within their normal jurisdiction.
 Courts can refuse to enforce a legislative which are unconstitutional and hence void.
 HoF: Its Role in the Interpretation of Constitution
General
 The House shall have the power to interpret the Constitution.

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  Notwithstanding with sub-Article (1) of this Article the House shall not be obliged to render a
consultancy service on Constitutional interpretation.
Constitutional Interpretation
 The house shall make the final decision upon draft proposal of constitutional interpretation
submitted to it by the Council of Constitutional Inquiry.
 A party dissatisfied with the decision of the Council of constitutional inquiry of rejection of case
relating to review of constitutional interpretation may appeal to the House.
 Forwarding cases of Constitutional Interpretation
 The house shall forward new cases of Constitutional interpretation, submitted to it directly, to the
Council of Constitutional Inquiry.
 Principles for Executing Constitutional interpretation
 The House shall identify and implement principles of Constitutional interpretation which it
believes help to examine and decide Constitutional cases submitted to it.
 Where the Constitutional case submitted to the house pertains to the fundamental rights and
freedoms enshrined in the Constitution, the interpretation shall be made in a manner conforming
to the principles of the Universal Declaration of human Rights, International Covenants on human
Rights, and International instruments adopted by Ethiopia.
 Additional Information and Evidence
 The house shall collect additional information or order the pertinent body to produce evidence as
may be necessary before it makes a final decision upon Constitutional interpretations.
 It‟s Role in Fiscal Matters
 The Ethiopian Constitution provides a separate regime of allocation of powers on matters
concerning taxation (see above). The Ethiopian federal system insists on the allocation of separate
legislative, executive, financial and judicial powers to each and every level of government.
 Stability and Effectiveness
 In much of the literature ‗stability‘ is the major indicator of working democracy. The reasoning is
that if a parliamentary system obtains stable government, then it equally obtains effective
government. Conversely, unstable governments attest to inefficient government.
 The Office of the Prime Minister- Art, 74 (1) of the FDRE Cons‟n
 ―The prime minister is the chief executive, the chairman of the Council of Minister, and the
commander-in-chief of the National Armed Forces.‖
 Appointment of the PM- Art, 73 of the FDRE Cons‟n
 The prime minister shall be elected from among members of the House of Peoples‘
Representatives.

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  Power of government shall be assumed by the political party or coalition of political parties that
constitute(s) a majority in the House of Peoples‘ Representatives.
 Intervention in case of deteriorating security situation
Principle
 The security situation shall be deemed to have been deteriorated where there is an activity that
disturbs the peace and safety of the public and the law enforcement agency and the judiciary of
the Region are unable to arrest the security problems in accordance with the law.
Request of the Region
 The State Councilor the highest executive organ of the Region shall present its request to the
Prime Minister through the Ministry of Federal Affairs where any Region faces a deteriorating
security situation and is unable to arrest it on its own.
Deployment of Force by the Federal Government
 The Prime Minister shall deploy the Federal Police or defense force, or both to arrest the
deterioration security situation taking into consideration the gravity of the situation. The force to
be deployed shall be under the command of the concerned Federal organ;
Report
 The Prime Minister shall present periodic report to the House of Peoples‘ Representatives on the
activities carried out by the forces in the Region.
 Intervention in case of violations of human rights
 Intervention when the constitutional order is endangered
 Parliamentary Control over Defense
Direct Control:
 By Enacting Legislations
 Following the procedures established by law and the Constitution, the House of Representatives,
has as per Article 55(7) the power to determine by enactment the organization of the national
defense and public security.
 Allocation of Budget
 On the basis of the budget proposal formulated by the Ministry of Defense, developed and submitted by the Council of
Ministers, the House of Representative has the power to ratify the federal budget as per Article 55(11).
 Enforcing Transparency
 There is no direct reference to transparency with respect to defense, but the Constitution under Article 12
states that the conduct of affairs of Government shall be transparent. Then:-
 How is the scope of state secret determined?
 How much should the mass media have access to state secrets?

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  Enforcing Political Neutrality
 Under chapter ten, Article 87(2)(4) and (5), captioned as on National Policy and Objectives, the
Constitution stipulates:-
 Composition of the defense force shall reflect ethnic composition of the Country;
 The Minister of Defense shall be civilian;
 The armed forces shall at all times obey and respect the Constitution; and
 The armed forces shall carry out their functions free of any partisanship to any political organization(s. Then:-
 International Relation
 The House of Representatives, as per Article 55 (12) has the power to ratify international treaty.
 Human Right Infringement
 Under Article 55(7), it is provided that if the conduct of the forces infringe upon human rights, the House
of Representatives shall carry out investigation and take the necessary measures.
 The use of Defense in time of War and Peace
 The House of Representatives has the power to:-
 As Commander-in-Chief of the Army, the Prime Minster leads the operational aspect of defense
matters. The General Chief of Staff is directly under him.
 The Council of Ministers
 determines on the implementation of the laws and decisions adopted by the House of Representatives;
 decides on the organizational structure of ministries and other organs of government; and it coordinates the
activities of same;
 draws the annual federal budget and when approved by the House of Representatives, it implements same;
 submits draft laws to House of Representatives, including Emergency Decree made as per Art 93 of the
Constitution;
 Has the power to regulate matters by issuing regulations.
Peripheral Control Mechanisms
 The House of Federation/Council of Constitutional Inquires:-
 By interpreting the Constitution
Federal Ethics and Anti-Corruption Commission
 By creating awareness and promoting public service code of ethics.
 By preventing, if possible, when it is committed by investigating and bringing the cases before a court of
law.
Human Rights Commission and Ombudsman
 What is and would be its role in defense matters?
Auditor General and the Ministry of Finance
 Conducting auditing annually and inspecting budget performance: fiscal and asset auditing;
 Regulating disbursement and purchasing of goods and services.

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 CHARTER THREE

THE JUDICIARY AND OTHER ORGANS OF CONTROL

 Judicial Power
Exclusive Power
 The Ethiopian judicial system, theoretically speaking, is organized on a dual basis in which there
are two parallel court systems, the federal courts and the state courts with their own independent
structures and administrations.
 Article 2(3) of Proclamation 25/96 as ―laws of the federal government include all previous laws
in force which are not inconsistent with the constitution and relating to matters that fall within the
competence of the federal government as specified in the constitution.‖

The Power of Cassation

 The Federal Supreme Court shall have the highest and final judicial power over federal matters,
whereas the State Supreme Court shall have the highest and final judicial power over state
matters. In this regard, it appears, as far as state matters are concerned, there is no appeal from
State Courts to Federal Courts. However, the assertion of matters within each respective state is
not without difficulty. The Federal Supreme Court has found ways and means of reviewing State
Supreme Court of last resort for appeals in civil and criminal cases.
 The Federal Supreme Court has a power of cassation over any final court decision containing a
basic error of law.
 The State Supreme Court has power of cassation over any final court decision on state matters
which contain a basic error of law.

Power of other Organs of Control

 The Institution of the Ombudsman;
 The Human Rights Commission;
 Auditor General;
 The House of Federation together with CCI, as interpreters of the Constitution, which have
been already treated, above.

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 Organization and Duties
 The Ombudsman‘s Office is strictly un-political, and it has been a tradition that an Ombudsman
should be acceptable to all the political parties.
 The Ombudsmen usually come from the judiciary and are recruited among persons who are, or
would be suitable as Justices of the Supreme Court or the Supreme Administrative Court.

 The Jurisdiction of the Ombudsman

 The Ombudsman‘s supervision covers virtually all governmental agencies and the local
government as well as the individual members of their staff. The four Ombudsmen, thus,
supervise the police, the security police, the armed forces and the prison administration,
respectively.
 The Ombudsmen also supervise all other persons who exercise public power. For example, an
employee of a state-owned company which is responsible for safety controls of cars can be
subject to supervision by the concerned Ombudsman to ensure that no car with faulty design or
defects makes it to the roads.

Investigatory Powers
 The Ombudsmen have vast powers of investigation which are laid down in the Constitution.
Thus, they have access to all official documents.
 The Ombudsman‘s Office is usually described as an extraordinary institution.
 The role of the Ombudsman is, instead, based on the principle of personal accountability of every
official for his decisions.

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Part IV

MISCELLANEOUS CONCERNS

CHAPTER ONE

EMERGENCY POWERS

 Need for extra powers during Emergency

 ―In a federal country, such extraordinary emergency situation would call for a greater
concentration of powers in the federal or national authorities and a greater encroachment
(infringement) on the powers normally assigned to the State Governments.

 The problem of Emergency in a Democracy

 ―Whatever be the form of Government, emergency situations are bound to arise in any
country, owing to various factors like war, rebellion, natural disaster, economic or
financial breakdown which call for immediate measure to be taken by the Government to
safeguard the stability of the country or the safety of the citizens, which, in order to be
adequate, must be different from or in addition to the normal system of administration.

Public emergency
 Tests of: ―Combining the foregoing two observations, a ‗public emergency‘, which
authorizes extraordinary measures derogating from human rights, nay be defined as –
 An exceptional situation,
 Which threatens the organized life of the whole community,
 Which calls for extraordinary measures, and
 Which are not permitted by the normal machinery of the administration.

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 War Emergency
Other Public Emergency

 International Charters
 ―Natural catastrophe, such as famine, or pestilence, flood, earthquake, causing destruction of life
or property.
 Economic or financial crisis caused by war by continuing even after its termination.
 An economic crisis, like inflation, in time of peace, imperiling the well-being of the nation as a
whole, so as to require a regulation and control of prices, profits, wages, salaries, dividends and
the like.
 What measures would be justified to deal with the Emergency
 The safeguards taken for preventing abuse of the extraordinary powers;
 The extent of invasion of human rights and liberties;
 The manner in which the measure were applied.

 Rights which cannot be derogated front even in Emergency

 Right to life (Art. 6).
 Immunity from torture or inhuman treatment (Art.7).
 Freedom from slavery or servitude (Art. 8(1)-(2))
 Immunity from imprisonment for non-fulfillment of contractual obligations (Art.11).
 Immunity from retroactive or ex post facto criminal laws and penalties (Art. 15).
 Right to be recognized as a person before the law (Art.6).
 Freedom of thought, conscience, religion (Art.18).

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 CHAPTER TWO

CONSTITUTIONAL INTERPRETATION AND CREATING NEXUS WITH

(MAINSTREAMING) OF CONSTITUTIONAL VALUES

 Principles of Interpretation in Continental and Common Law Systems

 In detail, the following series were developed in the process of interpretation of statutes in Common Law
Countries:-
 literal theory,
 subjective theory,
 purposive theory,
 teleological or value-coherent theory,
 systematic or comparative theory,
 judicial or free theory,
 Objective theory or delegation theory.
Literal Theory
 The words do not by themselves determine the legal meaning but have to be interpreted in their legal
context or by going back to the intent of the law-giver. The relationship between words and their meaning
is not mathematical or quantitative. According to the theory the following rule was accepted: ―Words
should be generally given the meaning which the normal speaker of the English language would understand
them to bear in the context, in which they were used.‖
Intentional or Subjective Theory
 There are also two different ways to detect the subjective meaning or the intent of the law-giver:
 ―The first way would mean to find out what the draftsmen or members of parliamentary committees wanted
to express in their comments or papers. Sometimes it might be possible to find out what the legislator really
meant when he used a certain word or a certain language.
 ―There is however a second way, which is to find out the aim of the lawgiver in changing the policy of the
existing law or in correcting an inadequacy in it. The same is also sound as a fiction, and, as such, the aim
of the legislator must be carefully detected out of the law giving process. This form of subjective
interpretation is very close to another method which will be explained in the next.
The Purposive Theory
 The purposive theory can be said objective and much more general with regard to the interpretation of a
rule or regulation. This theory does not look at the always doubtful intention of the law-giver, but at the
objectives of the law as a whole rather than at the specific rule which is to be applied.
 In such instances, a method, which is called the contextual approach, is employed; a method that prescribes
that the regulation or the very specific rule in question be put into the whole system of the enactment or
even the code itself.

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 Teleological Theory
 The judges tried to find the spirit or the letters of the law. This method is not identical with the purposive
method because the teleological theory is based on equity.
 The idea that laws have to be softened or tempered by equity can already be found in antiquity. This
teleological method is clearly value oriented; which means that in an equitable approach such basic values
like freedom and equality, fairness and due process by means of interpretation of the law and the
Constitution should be given effect to. Although in Continental Law, the idea of equity does not play the
same role as in the Common Law, the idea of teleological interpretation, as a value oriented instrument, is
often employed.
Systematic or Comparative Theory
 Some elements of the intentional theory, the purposive theory and the teleological theory are put together in
this method. This results from the fact that Continental Law is generally based on codified law; i.e. on an
organized and logical system of rules. The purpose of a law or regulation can therefore often be found in
other parts of the same enactment. In the same way, the so called contextual aids or elements, which are
used by the intentional theory, also form a systematic order and belong, therefore, to the systematic method
of interpretation.
Objective Theory or Delegation Theory
 This theory was originally developed as a reaction against the intentional theory, because it was believed to
be more or less a fiction that the interpreter could find out the real intention of the lawgiver. This theory
believes that the words of a regulation are just a delegation to the Court; one that gives it the competence
for its own interpretation. Therefore the more imprecise the regulation would be, the more authority would
be transferred to the Court to decide.
Intervention of the Federal government
 The House shall order the Federal Government to intervene in any State in which it believes the
constitutional order is endangered.
 The House shall take this measure having due regard to the general constitutional structure and division of
powers. The following cases are, however, sufficient to say that the constitutional order is in danger:
 Suspension of government institutions recognized in the constitution directly or indirectly from their
regular functioning or;
 The failure of any state to execute directives given to it by the House of Peoples‘ Representatives in
accordance with Article 55/16/ of the constitution, or its unwillingness to do so or;
 Where the state fails to secure peace and security using its own regular peace keeping mechanism due to
the fact that the problem is beyond its control and fails to call the Federal Government to intervene in such
state of affairs.

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HUMAN RIGHTS LAW

CHAPTER ONE

INTRODUCTION TO HUMAN RIGHTS LAW

 Nature and Definition of Human Rights :-

 They belong to an individual as a consequence of being human.
 Human rights differ from other rights in two respects.
 Firstly, they are characterized by being:-
 Inherent in all human beings by virtue of their humanity alone (they do not have, e.g., to be
purchased or to be granted); Inalienable (within qualified legal boundaries); and equally
applicable to all.
 Secondly, main duties deriving from human rights fall on states and their authorities or
agents, not on individuals.

 Classification of Human Rights

classic and social rights
 „Classic‟ rights are often seen to require the non-intervention of the state (negative obligation),
entail an obligation for the state to refrain from certain actions. Civil and political rights, often
require considerable investment by the state.
 ‗Social rights‘ as requiring active intervention on the part of the state for their effective realization,
oblige it to provide certain guarantees.

 civil, political, economic, & social and cultural rights

 Civil rights - the right to life, liberty and security of the person.
 Political rights- freedom of expression, freedom of association and assembly, the right to
take part in the government of one‘s country.
 economic and social rights- to the right to property, the right to work, the right to a fair
wage, a reasonable limitation of working hours, and trade union rights.
 cultural rights- the right to participate freely in the cultural life of the community, to share in
scientific advancement, and the right to the protection of the moral and material interests
resulting from any scientific, literary or artistic production of which one is the author.

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 Differences
 Civil and political rights are considered to be expressed in a very precise language, imposing
merely negative obligations which do not require resources for their implementation, and which,
therefore, can be applied immediately.
 Economic, social and cultural rights are considered to be expressed in vague terms, imposing only
positive obligations conditional on the existence of resources and therefore involving a
progressive realization.
 Civil and political rights are justiciable whereas economic, social and cultural rights are not.

 Fundamental and basic rights

 Fundamental rights are taken to mean such rights as the right to life and the inviolability of the
person.
 Basic rights, which should be given absolute priority in national and international policy. These
include all the rights which concern people‘s primary material and non-material needs- the right
to life, the right to a minimum level of security, the inviolability of the person, freedom from
slavery and servitude, and freedom from torture.

 Other classifications
Freedoms:-
 Preconditions for a dignified human existence have often been described in terms of freedoms
(e.g., freedom of movement, speech, belief, freedom from torture, and freedom from arbitrary
arrest).
Civil liberties:-
 The concept of ‗civil liberties‘ is commonly known, particularly in the United States, these refer
primarily to those human rights which are laid down in the United States Constitution: freedom of
religion, freedom of the press, freedom of expression, freedom of association and assembly.
Individual and collective right
 Although the fundamental purpose of human rights is the protection and development of the
individual (individual rights), some of these rights are exercised by people in groups (collective
rights), eg, self-determination (membership is a must).

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 Human Rights generations
 First, second and third generation rights
 The division of human rights into three generations was first proposed by Karel Vasak at the
International Institute of Human Rights in Strasbourg. His division follows the principles of
Liberté, Égalité and Fraternité of the French Revolution
First generation rights
 Are related to liberty and refer fundamentally to civil and political rights.
The second generation rights
 Are related to equality, including economic, social and cultural rights.
Third generation or „solidarity rights‟ cover group and collective rights,
 Which include, inter alia, the right to development, the right to peace and the right to a clean
environment.

 Sources of Human Rights Law

 International conventions, whether general or particular;
 International custom, as evidence of general practice accepted as law;
 The general principles of law recognized by civilized nations;
 Subsidiary means for the determination of rules of law (judicial decisions and the teachings of the
most qualified publicists) and Decisions and teachings of the most highly qualified publicists.

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 CHAPTER TWO

HUMAN RIGHTS SYSTEMS :( SUBSTANTIVE RIGHTS, INSTITUTIONS AND

PROCEDURES)

 The Universal System: The UN System

 The Legal Framework
 UN Charter, UDHR, ICCPR, ICESCR (both have normative & procedural parts), International
Convention on the Elimination of All Forms of Racial Discrimination, 1965 (CERD), CEDAW
(1967) (The issues of gender-based violence are not specifically addressed in the convention. The
committee set up under the convention has also addressed this subject in its General
Recommendation of Article 19), Convention against Torture and Other Cruel, Inhuman or
Degrading Treatment or Punishment (1984), CRC (1989).
Reservations and Declarations
 A reservation is a statement made by a state by which it purports to exclude or alter the legal effect
of certain provisions of a treaty in their application to that state.
 A state may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:
 The reservation is prohibited by the treaty;
 The treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or
 In cases not falling under subparagraphs (a) and (b), the reservation is incompatible with
the object and purpose of the treaty.
 Some conventions allow or even require states parties to make declarations concerning the extent
to which they are bound by a certain provision. Such statements may relate to the competence of a
supervisory mechanism. Eg. Article 41 ICCPR stipulates that a state party may choose (not) to
recognise the competence of the Human Rights Committee to receive state complaints regarding
its human rights performance.
Restrictions and Derogations
 Conventions and other instruments may contain a number of restrictions or limitations to the rights
they stipulate.(no right is absolute)
 Some human rights instruments allow states to take measures derogating temporarily from some of
their obligations. Derogating measures must be of an exceptional and temporary nature. The state
is allowed to suspend the exercise of some rights when necessary to deal with an emergency
situation.

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 The rationale for derogation provisions is to strike a balance between the sovereign right of a
government to maintain peace and order during public emergencies, and the protection of the rights of
the individual from abuse by the state. The state is allowed to suspend the exercise of some rights
when necessary to deal with an emergency situation.
 Institutions and Procedures
 Treaty-based mechanism: supervisory mechanisms enshrined in legally binding human
rights instruments or conventions.
 Non-treaty- based (charter-based) mechanisms: supervisory mechanisms not based on
legally binding human rights treaty obligations. They are based on the constitution or
charter of an intergovernmental human rights forum, or on decisions taken by the
assembly or a representative body of the forum in question. (ICJ, UNGA, UNSC, Eco
and Soc Council, UNHRs Council, ILO).
 The various supervisory procedures established in human rights treaties can be divided into four main
groups:
 Reporting procedures
 Inter-state complaint procedure
 Individual complaint procedure
 Inquiries and other procedures
 Regional Human Rights systems
The African Human Rights System
 In June 1981, the ACHPR was unanimously adopted at the Nairobi Assembly of Heads of states
and Government of the OAU. It became operative in October 1986, and an African Commission
(An 11 member) began functioning on 2 November 1987.
 In 1998, the thirty-fourth summit of Head of State and Government of the OAU adopted a
protocol to the ACHPR for the establishment of an African Court on Human and People‘s Rights.
The Arab and Asian Human Rights System
 The Arab and Asian states have not yet created regional human rights regimes, but some steps
have been taken in that direction.
 In Asia, despite efforts by NGOs and the U.N., governments in the region have been unwilling in
general to ratify global human rights instruments, or create a regional human rights system.

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 CHAPTER THREE

SYSTEMS OF PROTECTION FOR VULNERABLE GROUPS

 There are particular groups who, for various reasons, are weak and vulnerable and consequently
require special protection for the equal and effective enjoyment of their human rights.
 Twelve groups are discussed:
o 1) women and girls; 2) children; 3) refugees; 4) internally displaced persons; 5)
stateless persons; 6) national minorities; 7) indigenous peoples; 8) migrant workers;
9) disabled persons; 10) elderly persons; 11) HIV positive persons and AIDS
victims.
Women‟s rights
 After the Second World War, a number of treaties on the protection of women were drafted and
both the UN Charter and the International Bill of Human Rights proclaim equal rights for men
and women and ban discrimination on the grounds of sex.
 In addition to instruments relating to discrimination in general, a whole series of instruments have
been developed specifically for the protection of women, the elimination of discrimination
against women and the promotion of equal rights.
 CEDAW calls for national legislation banning discrimination. It allows for temporary special
measures (‗affirmative action‘) to accelerate the achievement of equality in practice.
 On 6 October 1999, the General Assembly adopted an Optional Protocol to the CEDAW. It
establishes a procedure that allows individual women, or groups of women, to submit claims of
violations of rights protected under the Convention to the CEDAW Committee.
 UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of the
Prostitution of Others (1949), the UN Convention on the Political Rights of Women (1952) and
the UN Convention on the Nationality of Married Women (1957), the Rome Statute of the
International Criminal Court (1998).
The rights of the child
 In 1924, the League of Nations adopted a Declaration on the Rights of the Child (Declaration of
Geneva), containing five basic principles reflecting the clear consensus that children were in need
of special protection.
 In 1959, the UNGA unanimously adopted another more elaborate Declaration on the Rights of
the Child, stating in the preamble that ‗the child, by reason of his physical and mental immaturity,
needs special safeguards and care, including appropriate legal protection, before as well as after
birth.

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  Serious work on drafting a convention on the rights of the child began in the final years of the
1970s, resulting in the UNGA adoption of the Convention on the Rights of the Child (CRC) on
20 Nov. 1989. As of July 2004, 192 states had ratified it. (The United States and Somalia are the
only UN members).
 The principle of non-discrimination (Article 2);
 The best interests of the child (Article 3);
 The right to life, survival and development (Article 6); and
 Respect for the views of the child (Article 12).
 The CRC establishes the Committee on the Rights of the Child to supervise the progress made by
the states parties in achieving the realization of their obligations contained in the Convention.
 United Nations Children‘s Fund (UNICEF), one of the key organizations concerned with
children‘s rights.
The rights of indigenous people
 They have only after World War II become the subject of international human rights debate.
 Similar to the case of minorities, the diversity of indigenous peoples impedes a definition. The
indigenous differ enormously in cultures, religions, and patterns of social and economic
organization.
 The first international standard on indigenous populations was ILO 107 (1957), revised and
reformulated in 1989 and amended in ILO 169.
 Since the 1970s, the United Nations has been involved in initiatives, frequently in co-operation
with the ILO and the OAS, concerning the development of specific standards for the protection of
indigenous peoples. In 1982, the UN Working Group on Indigenous Populations was created as a
body of the Sub-Commission for the Prevention of Discrimination and Protection of Minorities.
 The Working Group on the Draft Declaration on the Rights of Indigenous Peoples, which was
established by the UN Commission on Human Rights, has been debating the draft Declaration on
an article-by-article basis, with the participation of a number of organizations of indigenous
peoples.
 The Declaration was to be adopted by the UN General Assembly in December 2004 at the end of
the decade of the rights of indigenous peoples. However, as of July 2004, there was still no
consensus on a draft text; indigenous peoples and governments differ on issues related to the right
to self-determination, collective rights and the exclusive right to use natural resources.
 At the UN treaty-based level, the Human Rights Committee has been called upon several times
by indigenous persons to decide on possible infringements of their human rights.

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 Three charter-based bodies have been established to deal with issues relating to indigenous peoples at
the UN:
 the Special Rapporteur on the Situation of Human Rights and Fundamental Freedoms of
Indigenous People,
 the Working Group on Indigenous Populations, and
 The Permanent Forum on Indigenous Issues.
Protection of disabled persons
 International human rights instruments protect the rights of persons with disabilities through the
principles of equality and non-discrimination.
 The UDHR refers expressly to disabled persons, stipulating in Article 25 that ‗everyone has the
right to security in the event of disability‘, but nor its derivatives, the ICCPR and ICESCR.
 The ACHPRs stipulates in Article 18(4) that the disabled shall be entitled to special measures of protection. The
European Social Charter (revised), Article 6 of the Protocol of San Salvador stipulate :-
 Two international conventions dealing directly with the rights of disabled persons
have been drafted are:-
 One is the Inter-American Convention on the Elimination of All Forms of Discrimination
against Persons with Disabilities 1999) the only regional convention of its kind in the world
& ILO 159 concerning Vocational Rehabilitation and Employment (Disabled Persons) (1983).
 Specific non-binding instruments have also been adopted at the international level addressing
the rights of disabled persons. These include the Declaration of the Rights of Mentally
Retarded Persons (UNGA Resolution 26/2856 (XXVI), 1971); the Declaration on the Rights
of Disabled Persons (UNGA Resolution 30/3447 (XXX), 1975); the World Programme of
Action concerning Disabled Persons (UNGA Resolution 37/52, 1982)
Elderly Persons
 As the world‘s population ages and the traditional role of the family as the main support of older
people weakens, the elderly are increasingly vulnerable to abuse and various forms of negative
stereotyping and discrimination.
 The rights stipulated for the elderly in international instruments stem from the principles of
dignity and non-discrimination.
 Neither the UDHR nor its derivatives, the ICCPR and ICESCR , contain any explicit reference to
older persons, but many provisions of these instruments are of direct relevance to ensuring equal
opportunities and the full participation of the elderly.

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 Three regional human rights instruments expressly mention older persons as a group in need of
special protection are ,
 Article 18(4), the African Charter 1981, the Protocol to the African Charter on the Rights of
Women in Africa & Article 17 of Protocol San Salvador.
 In 1992, the General Assembly adopted the Proclamation on Ageing.
 In 2002, the 2nd World Assembly on Ageing adopted a 2nd International Plan of Action on
Ageing.
Refugees
 In the aftermath of World War II, the international community included the right to seek and enjoy
asylum in the 1948 Universal Declaration of Human Rights. In 1950, the Office of the United
Nations High Commissioner for Refugees (UNHCR) was created.
 In 1951, the United Nations adopted the Convention Relating to the Status of Refugees. The
Protocol relating to the Status of Refugees (the 1967 Protocol) helped to widen the definition of a
refugee, as it lifted the time and geographic limits found in the 1951 Convention.
Stateless persons
 Nationality is not granted indiscriminately, but is normally based on factors such as the place of
birth of a person, parentage or the relationship a person has established with a state through, for
example, marriage to a national or long-term residence there.
 A stateless person is the person who is not considered a national of any state under operation of its
law. Statelessness occurs for many different reasons.
 A person may loose her/his nationality and is not able to acquire a new one because of
extended stay abroad or because of marriage or dissolution of marriage to a person of a
different nationality.
 The two primary international conventions on statelessness are the Convention relating to
the Status of Stateless Persons (1954) and the Convention on the Reduction of
Statelessness (1961).
 Others are Convention on the Nationality of Married Women (1957), CEDAW (Article 9) and CRC
(Articles 7 and 8).
 At the regional level, the American Convention on Human Rights (1969) and the European
Convention on Nationality (1997) underline the need of every person to have a nationality.
 Similar to the situation of IDPs, there is today no specific body that deals with the problem of
statelessness, or that supervises the 1954 and 1961 statelessness conventions. In order to fill this
vacuum, upon the entry into force of the Convention on the Reduction of Statelessness in 1975,
UNHCR was provisionally asked to assume the responsibilities.

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 Migrant workers
 Historically, the rights of migrant workers have fallen under general diplomatic protection, based
on the international law governing the treatment of non-nationals.
 In 1990, the UNGA adopted the International Convention on the Protection of the Rights of All
Migrant Workers and Members of Their Families.
 It provides for the establishment of a Committee. In 1997, the UN Commission on Human Rights
established the Working Group of Intergovernmental Experts on the Human Rights of Migrants
with a mandate to gather all relevant information.
 In 1999 the Commission appointed a Special Rapporteur on the human rights of migrants.
HIV Positive Persons and AIDS Victims
 The incidence of HIV/AIDS is disproportionately high in groups who already suffer from lack of
protection and discrimination; such as women, children, those living in poverty, minorities,
refugees and internally displaced people.
 The key human rights principles are to be found in ICESCR; ICCPR; CEDAW; CAT; CERD;
and the CRC. The Paris Declaration on Women, Children and AIDS (1989).
 At the regional level, the American Convention on Human Rights, the European Convention for
the Protection of Human Rights and Fundamental Freedoms and the African Charter on Human
and Peoples‘ Rights also enshrine general state obligations.
 The UNGA has emphasised the need to counter discrimination and to respect human rights of
people with HIV/AIDS in several resolutions & The UN Commission on Human Rights doing the
same.
 The Office of the United Nations High Commissioner for Human Rights (OHCHR) and the joint
United Nations Programme on HIV/AIDS (UNAIDS) have developed guidelines to assist states.

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 CHAPTER FOUR

CULTURE, GLOBALIZATION AND HUMAN RIGHTS

 Culture and Human Rights

 Universal Human Rights and Cultural Relativism
 Cultural relativism is the assertion that the promotion, protection, interpretation and application of
human rights which could be interpreted differently within different cultural, ethnic and religious
traditions. Human rights are culturally relative rather than universal.
 Accordingly, the promotion and protection of human rights perceived as culturally relative would
only be subject to State discretion, rather than international legal imperative.
 Based on universal perspective human rights are the natural-born rights for every human being,
universally. They are not privileges.
 Human rights are for all human beings, regardless of "race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other status".
 The denial or abuse of human rights is wrong, regardless of the violator's culture.
 UN as proclaimed in its Charter, which states that human rights are "for all without distinction".
 The Charter further commits the United Nations and all Member States to action promoting
"universal respect for, and observance of, human rights and fundamental freedoms".
 Consensus is embodied in the language of the Universal Declaration itself.

 Human Rights, Cultural Integrity and Diversity

 Like most areas of international law, universal human rights are a modern achievement, new to
all cultures. Human rights are neither representative of, nor oriented towards, one culture to the
exclusion of others.
 Universal human rights emerge with sufficient flexibility to respect and protect cultural diversity
and integrity.
 Most directly, human rights facilitate respect for and protection of cultural diversity and integrity,
through the establishment of cultural rights embodied in instruments of human rights law.
 Every human being has the right to culture, including the right to enjoy and develop cultural life
and identity. Cultural rights, however, are not unlimited.

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  Cultural rights do not justify torture, murder, genocide, discrimination on grounds of sex, race,
language or religion, or violation of any of the other universal human rights and fundamental
freedoms established in international law.
 Globalization and Human Rights
 Because of this more people are crossing borders in search of jobs and in most conditions people
are forced to work in inhuman conditions for lower wages.
 The transnational companies are the spearheads of globalization and have become the dominant
economic and political force in the world economy.
 Globalization has substantially contributed to the intensification of debt, poverty and economic
crisis in the developing world.
 Human rights have become an integral part of the process of globalization in many ways. The
Western countries are increasingly using their view of human rights concept as a yardstick to
judge developing countries and to deal with economic and trade relations to extend development
assistance.
 The aims and objectives of the so-called development models promoted by different governments
or international development agencies are not compatible with human rights standards.
 Human rights have entered the already numerous criteria for allocating aid fairly recently. This
entry has been neither easy nor smooth because no general criteria have been developed by
donors and consequently decisions have been made on case-to-case basis.
 Several developed countries in the world have been trying to inter-relate trade policy with human
rights policy. The case of China has been controversial, with opinion in the United States sharply
divided on the desirability of conditioning trade preferences on compliance with specified human
rights.
 Keeping millions of Chinese in poverty by restricting their right to trade, in the hope of
promoting human rights, is neither logical nor moral. Likewise, depriving Americans of the
freedom to trade and invest in China violates their rights to liberty and property‖.

 Impact of Globalization on Human Rights

 The Human Development Report of 1997 revealed that poor countries and poor people too often
find their interests neglected as a result of globalization.
 It ultimately causes increased impoverishment, social disparities and violations of human rights.

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 CHAPTER FIVE

RESPONSES TO GRAVE VIOLATION OF HUMAN RIGHTS

 National responses -Transitional Justice

 The international system of addressing violations becomes relevant if the domestic system is
unable/ unwilling to provide remedies.
 Regime change is a prerequisite for putting the national mechanism of responding to such
violations.
 Transitional justice means justice at the time of transition.
 Societies in transition may have variety of needs/concerns related to past violations.

 The need for justice - The need to know the truth - The need for conciliation
 The modalities of transitional Justice
 Prosecution
 Truth & reconciliation
 Amnesty

 International Responses
 The criminal responsibility of individuals under international law contributes to fight impunity,
however, limited it is.
 The mechanism by which international law ensures that has taken different forms. These include:
 The recognition & application of the principle of universal jurisdiction- Universal jurisdiction
allows for the trial of international crimes committed by anybody, anywhere in the world. There
are offences recognized by international law as punishable by any country.
 prosecution and trial by ad hoc international tribunal, and
 Prosecution & trial by a permanent international tribunal called the International Criminal Court.

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FEDERALISM

CHAPTER ONE

THE CONTEXT OF THE FEDERAL SYSTEM IN ETHIOPIA

 Historic Ethiopia as a de facto federation

 Except for the twentieth century, a cursory reading of history reveals that Ethiopia has for the most part
been under a decentralized rather than a centralized system of governance.
 One observes a co-existence of a duality of authorities mainly that of the Imperial throne, representing the
center and a number of provincial nobilities effectively exercising decentralized power.
 Regionalism or provincialism, one essential element of diversity that defined the Ethiopian state,
characterized the relationship between the center and the provinces.
 The cluster of kingdoms existed effectively for centuries until they were finally incorporated into the
Ethiopian state in the second half of the 19th century. There always existed a network of trade relationships
as well as relationships based on religion. The imperial throne served as a symbol of unity and the political
system combined a balance of forces between the monarchy and regional nobility.
 The process of centralization, modernization, nation building shined during Haile Silassie I.
 The religious, lingual, cultural as well as political and economic dominance gave birth to the ‗question of
nationalities. ‘The state failed to accommodate them.
 The process of centralization (1930-1991)
 The Era of Written Constitutions
The 1931 Constitution
 The first measure the Emperor took along the process of centralization was the grant of the Constitution.
 The Constitution‘s major outcome was its ability to establish the legal framework within which
governmental power was to be channeled and distributed. It was aimed against the personal, arbitrary and
ill-defined powers traditionally held by the nobility.
The 1955 Revised Constitution
 Continued to reinforce the process of centralization.
 A significant political factor that influenced the revision of the 1955 Constitution was The Ethio-Eritrean
federation.
 Interestingly enough it also contained an elaborate regime of civil and political rights for the subjects.
 A basic development was the introduction of the representative principle for the chamber of Deputies
whose members were elected on the basis of universal adult suffrage.
 Was a legal charter for the consolidation of absolutism.

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 The 1987 Constitution
 The draft constitution was completed in 1986 and was formally submitted to public debate and ratified by a
referendum in February 1987.
 In an election in which a single party, WPE members, participated members of the National Shengo
(parliament) were elected.
 The Constitution stated that Ethiopia is a unitary state constituting administrative and autonomous regions.
It stated that the nationalities are equal and ensured the equality of nationalities.
 Each nationality would have regional autonomy to decide on matters concerning its affairs. Eritrea but
without its Afar inhabited areas, Tigray, Assab for the Afars, Dire Dawa for the Issas, and Ogaden.
 The WPE played this role and in the end not even the minimal versions of self-autonomy were put into
practice. The Constitution in dealing with regional autonomy did not offer any hope in terms of
reconciliation for peace with the opposition.
 The transitional period (1991-1994)
 A national conference for this purpose was convened in Addis Ababa from July 1-5, 1991. The Conference resulted in
the signing of the Charter by the representatives of some 31 political parties, the creation of an 87 seat Council of
Representatives and the establishment of Transitional Government of Ethiopia (TGE).

 The Charter established the framework for the provisional government and guaranteed nationalities to preserve their
identity, administer their own affairs within their own defined territory, the right to participate in the central
government based on fair and proper representation, and the right to self-determination.

 The establishment of national regional self-governments was provided for in another proclamation. The proclamation
enumerated sixty-four identified nations, nationalities and peoples and set up fourteen regions.
 The striking point is that nowhere do the charter and the proclamation employ the term federation in either their
preamble or specific legal provisions, although both documents ensure each nationality with the right to self-
determination including secession.
 If one looks at the legal framework from the angle of a federal system, there is no doubt that the balance swayed in
favor of the center. The enumeration of the powers of the central government was not exhaustive and contained broad
terms.
 In the language of the Charter, the Transitional Government shall exercise all legal and political power for the
governance of Ethiopia. In no unequivocal manner, the proclamation also stated that national regional transitional self-
governments are in every respect, entities subordinate to the central TFG.
 One of the major tasks of the transitional Council of Representatives was to direct the process of constitution making
and pave the way for a new national election based on the ratified constitution.

 there is a widely held view that considers constitutions merely as instruments for promoting the political will of the
victorious ones/ruling elites of the time and not of the people per se and hence are viewed as instruments of submission,
hence the saying ―Negus Aykeses Semay Aytares‖.

 Many of the constitutions have not been results of negotiated outcomes or of a publicly held consensus.

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 CHAPTER TWO

SOME COMMON FEATURES AMONG FEDERATIONS

 Introduction
 In the contemporary world, federalism as a political idea remains still popular for reconciling
unity and diversity under a single political system. (Despite USSR & Yugoslav case).
 Federalism as a political concept and federations in the form of institutions seem to provide ‗the
closest institutional solution‘ combining shared rule for some commonly shared purposes and
self-rule for other purposes of regional interest in the world today.
 Federalism is also getting popular because it is employed as a means of solving ethnic conflicts.

 Federalism and federations

 Within the context of the older federations, federalism might mean the joining together of some
semi-autonomous units for some common goals.
 Within the context of the EU it might refer to the coming together of the bulk of European states
and the emergence of new institutions combining con-federal as well as federal features.
 Within the context of former communist federations, federalism may mean the existence of some
features associated with the division of powers in constitutional form rather than in operational
reality.
 In the African context, federalism is associated with the colonial experience of divide and rule. It
means different things to different people depending on historical and cultural context.
 Federalism refers to an ideology: a normative principle, while federations refer to institutions.
 Federation is descriptive concept referring to the actual system of governments. Federalism as a
political philosophy is essentially an organizing principle.
 Federations constitute the institutional and structural techniques for achieving one of the goals of
federalism.
 In confederation the central government had no direct authority to act upon the people.
 confederations occur when several pre-existing polities join together to form a common
government for certain limited purposes such as foreign relations and defense, but the common
government is dependent upon the states.
 As opposed to confederations, in decentralized governments the units, often called local
governments, are subordinate to the center. However wide powers they may exercise, the local
governments are merely creations of the center by a statute and as a result they may be wiped out
by the center at any time.

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  In decentralized systems, the emphasis is on self-rule rather than on shared rule. In a federation,
the division of power is constitutionally guaranteed and the states are not creations of the federal
government.
 Both the federal government and the states derive their authority from the federal constitution and
as a result neither level can change the terms of the compact as enshrined in the constitution.

 Some common features among federations

 Division of Power
 leg, exec, judicial & financial functions is constitutionally divided b/n the federal gov‘t &the
states,& that both orders of gov‘t are autonomous with respect to the powers granted to them.
Written and Supreme Federal Constitution
 Federations originate from particular bargains. Written constitutions are, therefore, necessary
records of the terms of the bargain. To write and adopt a constitution is to agree to the bargain
itself.
 The terms of the agreement, which establish the federal government and the states and which
distribute powers between them, must be enshrined in a supreme federal constitution, which is
binding.
 It is supreme federal constitution b/c from w/c the federal gov‘t and the states derive their
authority.
 Federalism is a covenant b/c federations are considered to have resulted from the federal idea of
compact, implying an agreement that is freely and mutually consented to.
 But the assertion that federations are based on contracts needs to be adopted with a serious
qualification.
 1st, federations unlike confederations are not exclusively based on the presumed existence of
sovereign states.
 2nd, even referring to the states, they do not in all cases freely agree to enter or remain in the
union.
 3rd, even if it results from contracts, it still has a unilateral character. If we focus on the
center-seeking federations (as in Switzerland and the US), the central government, crucial
for the federation is absent during the federal bargain. In centrifugal federations (qedmo
begara yenoru gizatoch yalubet Eth.), it could be said that the states are absent during the
federal bargain. B/c they were not in existence unlike Confederations.

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 Rigid Constitution
 It must be rigid and require the participation of both the federal government and the states for
their amendment.
 Constitutions change and adapt and an agreed method for achieving constitutional adjustments as
the need arises is often the key to the continued success of the federation.
 Constitutions are amended according to procedures that differ from the procedures for amending
ordinary laws. The Ethiopian Constitution is perhaps more rigid compared to the other
federations.
 Umpiring the Federation- the power to see the constitutionality of laws& settlement of disputes
is vested to an impartial body, independent of the federation and the states.
 There must be an umpire to rule on the interpretation of cases involving the division of power
specifically and on the rule of constitutionality in general.
 In US Supreme Court, in Switzerland through a referendum, In Germany the Constitutional
Court, In Ethiopia the HoF.

 Origin of Federations and Territorial Autonomy of the States

 The fact that federalism is considered the territorial distribution of power presupposes that the
states have a stable territory.
 In centrifugal federations there is a tendency to think that the states prior to the establishment of
the federation or during the formative stages did not reflect major diversities that define the states
and demands for territorial adjustments.
 Centrifugal or ‗holding together‘ federations are federations resulting from either a previously
unitary state or a retiring colonial state.
 ‗Coming together‘ federations are existing states are there. They are center-seeking federations.
 Existence of two or more orders of government

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 CHAPTER THREE

FEDERATIONS AND SECOND CHAMBERS

Rationale
 Within Bicameral legislatures, federations are designed carefully with institutions that reflect the
people as a whole on the one hand and the people as parts, often identified as states, on the other.
 Representation by territories and representation by size of population as distinct principles
operate in federations.
 The lower house is often uniformly organized on the principle of proportional representation and
there is a less strong federal element in it. But the upper chamber is often expected to reflect some
federal idea and its legislative role is defended.
 The first rationale emanates from the qualified application of the concept of sovereignty in
federations, limit majority rule. Second chambers in federations provide a protective mechanism
to smaller and more sparsely populated units feel potentially threatened by more densely
populated states.
 The second explanation emanates from division of power, in itself is premised on the idea that
federations are principally organized on the concept of ‗self-rule‘ for some purposes and ‗shared-
rule‘ for other purposes.
 Self-rule means that an entity can decide certain matters autonomously over competencies within
an overarching federal system.
 Shared rule refers to shared competencies as well as shared institutions through which federal
units are accorded special participation and input in the decision-making process at the level of
the encompassing entity.
 The FDRE Cons‘n, in the sense of having two chambers, the legislative power of the latter is very
much contested. The only provisions where one may by stretch of imagination trace legislative
functions are Articles 99, 62(7) and 105.
 It declares: ‗The HPR shall have the power of legislation in all matters assigned by this
Constitution to Federal jurisdiction.‘
 The nationalities, the right to be represented in federal government stipulated by Article 39(3)
could not be pushed further to include the federal legislature. Unlike the other federations, the
Ethiopian Constitution fails to entrench the states or to use the terms of the Constitution, the
nations, nationalities and the peoples to be part of the federal law-making process.
 Art 39(3) is for the representations in the executive, HoF & other federal organs.

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  Ethiopian Constitution ‗betrays‘ the federal idea significantly. The territorial units have neither
the minimum participatory role nor the even greater functions assigned to upper chambers. Being
hijacked by a few more populous ethnic groups.
 It betrays federal principle (incorporation of the states in the federal law-making process and
federal practice) b/c HoF has no power of law making. Nor equitable representation can be
applied in the HPR.

Composition
 The principle of equality of regions- In the United States, the Senate embodying the principle of
equal representation of the states, notwithstanding disparities in their population, was the price
that the larger states had to pay for the participation of the smaller states in the federation.
Accordingly, each of the 50 states enjoys formal equal representation in the upper house.
 The less populous states often fight to safeguard their interests from being swamped by the
legislature composed by a popularly elected lower house. Accordingly, second chambers based
on equal state representation are instituted to take care of the concerns of the less populous states.
 The same principle is adopted under the Swiss Constitution, except for introducing the notion of
full and half Cantons. Six half Cantons elect one and the remaining twenty each shall elect two
senators.
 The principle of equality of citizens - the Indian Constitution and German Basic Law represents a
different principle that tries to balance the interests of the most populous states on the one hand
and those of the less populous ones on the other. (Provides a list of states and the corresponding
seats allocated to each state).
 Dilemma in Eth- Article 61(2) of the 1995 Constitution stipulates ‗each Nation, Nationality and
People shall be represented in the House of Federation by at least one member. Each Nation or
Nationality shall be represented by one additional representative for each one million of its
population.‘
 The organizational principle of the HoF is the same with the HoPR except that there is a
significant difference in the number of constituencies, 100,000 for the former and one million for
the latter.
 the nearly majoritarian HoF in Ethiopia, minority protection in the US and Switzerland, the
German and Indian Houses balancing the tension between territorial and citizen equality, in
between.

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 Selection
 In the Ethiopian situation Article 61(3) envisages two possibilities. Members of the House of
Federation may be elected indirectly by the state legislatures or the state legislature may decide
the members to be elected directly by the people. So far experience indicates that all members are
indirectly elected by the states.
 In the US (until 1913) and Switzerland, at least initially, representation is based on the territorial
principle and theoretically speaking the two representatives are expected to stand for the interests
of the states.
 In the US, since then, it is doubtful whether the Senators represent the interest of the citizen, the
state or some regional interest such as the mid-west, east or the south, as the citizen directly elects
them.
 Article 61(1) of the Ethiopian Constitution provides that the HoF is composed of representatives
of nations, nationalities and peoples.

Powers
 In the US and Switzerland where the two chambers are co-equal in power and are directly
elected. In the United States all legislative powers are vested in both houses.
 It has equal powers in all bills including money bills, except that it is introduced in the House of
Representatives. The advice and consent of the Senate (two-thirds vote) is a requirement for the
approval of treaties concluded by the President. The Senate has a similar role in the appointment
of ambassadors, or other ministers, consuls, and judges of the Supreme Court.
 The Swiss Council of States is equally empowered in all legislative affairs.
 In the German federation a bill requires the consent of the upper chamber (Bundesrat) if it has
financial implications or affects the duties of the Länder.
 German federalism is often uniquely described as ‗executive federalism,‘ signifying the fact that
federal government is predominantly responsible for legislating most of the laws while the states
are responsible for implementing such laws. Bundestag/lower house.
 The second chamber of India (council of states) with subsidiary power and playing a precipitate
function in the law-making process.
 It enjoys an even greater authority, going beyond the co-equal legislative role, compared to the
lower house. ‗Bills shall not be deemed to have passed by the houses of parliament unless it has
been agreed to by both houses.

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  The Ethiopian HoF has completely different role. It does not have a legislative function. Some of
the important powers conferred to the House under Article 62 include constitutional interpretation
(political rather than a judicial function) and organizing the Council of Constitutional Inquiry.
 It is perhaps in the area of fiscal federalism that the HoF could be considered important.

 The role of the HOF in intergovernmental relations

 Fiscal federalism is governing the allocation of revenue and expenditure responsibilities between
federal and state governments and it also attempts to deal with the system of intergovernmental
transfers between the federal government and the states as well as among the states.
 HoF shall determine the division of revenues derived from joint federal and state tax sources and
the subsidies that the federal government may provide to the states.
 The role of the HoF is double: it is the HoF that determines the criteria for the allocation of
concurrent tax (Article 98) as well as on the subsidies that the states receive from the federal
government.
 Other powers of the HoF include: deciding issues related to self-determination of nations,
nationalities and peoples, promoting the equality of the peoples; deciding disputes or
misunderstandings that may arise among states; exercising concurrent powers together with the HPR
and this includes: the residue power on tax, election of the federal president, and constitutional
amendment under Articles 104 and 105;
 Determining the division of revenues derived from joint federal and state tax sources and the
subsidies that the federal government may provide to the states; determining civil matters which
require the enactment of laws by the HPR; ordering the federal government to intervene if any
state threatens the constitutional order in violation of the constitution.
 The main function of the House appears to be an institution for conflict resolution and
adjudication of constitutional issues rather than a law-making organ.
 Second chambers at constituent units level that take care of the interests of local minorities or
indigenous people, on the one hand and a lower house that represents the interests of every citizen
on the other, is vital.

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 CHAPTER FOUR

FORGING UNITY OUT OF DIVERSITY IN MULTICULTURAL

 Federations: The Ethiopian Experience

 Federalism and the Accommodation of Diversity: The Ethiopian Experience
 The federal system that started de facto since 1991 and de jure following the adoption of the 1995
constitution attempts to end the cycle of political crisis by decentralizing power and resources and
by ensuring self-rule to the ethno-linguistic groups at various levels.
 Some of the features of the coming together include- the phrase ‗We the Nations, Nationalities and
Peoples of Ethiopia ...
 However, the overriding power of the federal government in practice, the limited role of the
constituent states in influencing the federal law-making process, explains its ‗holding together‘
aspect.
 The Constitution attempts to balance the interest of maintaining national unity on the one hand
and the ethno-linguistic groups demand for cultural preservation and distinctiveness on the other.

 Distinct Features of the Federal System

 The Explicit Recognition of Nations/Nationalities as Building Bricks of the Federation and Its
Implications
 Unlike many constitutions, the Preamble of the Cons‘t does not commence with the traditional
constitutional formula of ―we the people,‖ but with ―We the Nations, Nationalities, and Peoples
of Ethiopia‖.
 ―All sovereign power resides . . . , right to self-determination, takes the territorial principle
seriously, seven out of the nine constituent states (the only exceptions being the SNNPRS and
Gambela) are named after the major nationalities that ―dominate‖, A.A & D.D are less
autonomous compared to the constituent states b/c accountable to the federal gov‘t.

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 Shared Rule
 Unicameral Legislature/Adjudication of Disputes
 The second/upper chamber (HoF) is not part of the law making process at federal level. Federal
law does not need the consent of the HoF, to be a law.
 The Ethiopian federal system departs from this trend and grants the HoF among other things with
the power to interpret the Constitution, resolution of disputes among the regions, decide on
intergovernmental subsides and joint taxes.

 Some of the Contending Views on the Federal System- contradictory perspectives

 The first group - the ―ethnic‖ federation as a sign of the first mark of disintegration. ―Regionally
based ethnicity may reinforce the demands of some ethnic groups for more and more states and
finally for secession.
 The second group - the paradox between generously granted constitutional powers and a
centralized federal system in practice resulting from centralized policy making process and a
dominant ruling party system that is responsible for generating most of the policy documents.
 The third groups -Ethiopia's multicultural and multi religious context, the present federal system
is the only panacea to the country's age old political crisis as it provides a decisive remedy for
Ethiopia‘s long-standing problem of the ―nationality question‖.

 Federalism and the Treatment of Minorities in the Regions

 The notion of majority and minority in the Ethiopian federal context is indeed confusing.
 The minorities are nationals of the state of residence and possess ethnic, linguistic or religious
characteristics (identity stuff) that distinguish them from the rest of the population.

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 CHAPTER FIVE

DIVISION OF LEGISLATIVE POWERS

 The form and scope of distribution of legislative powers

 By forms of distribution of legislative power we are referring to the ways in which these powers
are constitutionally allocated between the federal government and the states. (The technique of
allocation of power.)
 While the scope of legislative powers refers to the areas and amount of jurisdiction assigned to
each order of government. (The substance of power allocated).
 The constitutional allocation of legislative power is defined on the basis of three categories,
namely exclusive powers (of the federal government and/or of the states), shared powers and
reserve powers.
 The use of exclusive powers refers to the powers for which the federal constitution has created a
monopoly, which either is in the hands of the federation or of the states.
 The Ethiopian Constitution in general follows the United States and Swiss forms of distribution
of powers. According to Article 50(2) ‗the federal government and the states shall have
legislative, executive and judicial powers.‘

Shared Powers
 Framework legislation has been prescribed for the exercise of a power, a special type of shared
power exists that in principle grants the federal government the competence to issue general
legislation in a specific policy field.
 It is to regulate federation-wide standards while leaving the states room to legislate the details and
to deliver the services in a manner adaptable to local situations.
 Although it has traditionally been argued that the Ethiopian Constitution has no shared powers
except in the area of taxation, it is clear that it provides some provisions dealing with framework
powers. Art 55(6) the HPR is empowered to enact civil laws, w/c the HoF deems ‗necessary to
establish and sustain one economic community‘. (Civil law is a matter reserved to the states.) &
Art 51(2) and sub (3) versus 52(2) c, Articles 52(2) d, 55(2) a, and 51(5)

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 concurrent powers
 As one category of shared powers, it refers to powers attributed to both entities. The general
thinking about shared powers has been that Article 52(1).
 One author notes that there are no concurrent powers in Ethiopia except on tax matters. However,
it is still possible to argue that even in other, non-tax fields, E.g. The states may, however, enact
penal laws too on matters that are not specifically covered by the federal penal legislation.
 The Ethiopian Constitution is silent as far as the thorny issue of regulating the relationship
between federal and state law in general and in relation to shared powers in particular is
concerned. (In case of conflict between state and federal law.)
 two views- If one adopts the federal supremacy clause by default, then most of the principles
stated in this section discussing shared powers in other federations, will hold true in Ethiopia as
well.
 But if one adheres to the ‗supremacy of nations, nationalities and peoples‘ literally because of the
principles stated on the preamble, the pretentious aggregate nature of the federation, Articles 8
and 39, then it may be difficult to state that federal law will pre-empt state law.

Residual powers
 Represent those powers not listed or partly listed by the constitution and assigned to either unit of
government. The Ethiopian Constitution expressly confers residual powers on the states. The
Constitution enumerates a list of seven jurisdictions given to the states in addition to the reserve
clause. One may doubt the relevance of the enumeration of state powers as the states are granted
reserve powers.
 Frequency of federal intervention, the grounds for intervention and the effects of such
intervention (Art 359/2003) federal government shall deploy at the request of a state
administration, federal defense forces to arrest a deteriorating security situation within the
requesting state when its authorities are unable to control it.
 The HPR shall on its own initiative request a joint session of the HoF and of the HPR to take
appropriate measures when state authorities are unable to arrest violations of human rights within
their jurisdiction.
 HoF shall order under Article 62(9) federal intervention if any state, in violation of this federal
constitution endangers the constitutional order.

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 CHAPTER SIX

DIVISION OF EXECUTIVE POWER AND INTERGOVERNMENTAL RELATIONS

 Dual versus executive or functional federalism

 Federal systems enforce their laws and policies by setting up dual structures, federal and state
institutions or by entrusting the state machinery with the power to enforce both federal and state
laws.
 Executive power is co-extensive with the legislative power. FDREC states: ‗The federal
government and the states shall have legislative, executive and judicial powers.
 It is true that there are some federal executive organs organized throughout the country to enforce
federal laws, eg ERCA, Post Office, Insurance, Banking, Tele, Public Prosecutor, Some
Ministries.

Dual Federalism
 Represented by the United States federation, where the allocation of executive authority is in
principle considered co-extensive with the distribution of legislative responsibilities.
 It follows that not only legislative but also executive, financial and judicial powers should be
divided between the federal government and the states so that each will act autonomously.

Executive Federalism
 The second possible arrangement of the executive. Germany and Switzerland and to some degree
in India.
 Administrative responsibility has not coincided with legislative authority. Administration for
many areas of federal legislative authority is constitutionally assigned to the governments of the
units.
 Federal gov‘t is for the most part responsible for law-making while the states are for
administering it.

 The system of intergovernmental relations in Ethiopia

Delegation
 FDRE Cons‘n seems to provide for downward delegation only. It is silent as to whether the states
can delegate their powers to the federal government.
 The fear that upward delegation might affect the autonomy.

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 Co-operation through Executive Institutions
 The political relationship between the federal government and the states is regulated by both
formal structures weakly defined in the constitution and various proclamations as well as practice
outside the legal framework. E.g. Ministry of Federal Affairs.
 The federal government provides the emerging states with additional support and this placed
them under the Prime Minister‘s scheme of formerly the Office for Regional Affairs and
presently the Ministry of Federal Affairs, which oversees their political development.
 The Ministry in its conflict handling power, there is certainly an overlap with what is stated under
Articles 48 and 62(6) of the Constitution on the powers of the HoF. The general scope is that the
HoF does the legal aspect of the conflict but the Ministry of Federal Affairs handles
administrative, political and developmental affairs with the states.

Co-operation through Party Channels

 Not unique to the Ethiopian federation. A political party is expected to harmonize the policies of
the federal government and constituent states.
 If the officials of both sets of government are adherents of the same ideology or followers of the
same leader or leaders, then they might be expected to pursue harmonious policies.
 The EPRDF is controlling all the regional state governments in the Ethiopian federation; either
directly through the member parties or indirectly through affiliated parties.
 The party structure in Ethiopia undermines the federal division of power and subordinates the
regional governments to the federal government, centralizing trend in the federal system,
intergovernmental conflicts are rare, perhaps absent.

Co-operation through the Process of Policy-Making

 States accept the economic, social and development plans issued by the federal government. In
theory they can adapt the policies to fit their own circumstances but the federal government does
play a key role in influencing through national policies.

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 CHAPTER SEVEN

FEDERALISM AND THE ADJUDICATION OF DISPUTES

 Constitutional Adjudication in Ethiopia: Exploring the Experience of the HoF

 Art 62 and 83, the HoF is not only empowered to decide constitutional disputes but also to interpret the
constitution.
 The rationale can be gathered from the minutes of the Constitutional Assembly emanate from two sources.
 One is related to the framers view of the ‗nature‘ of the constitution in general and to the role of the nationalities
in particular.
 The framers think that the new federal dispensation is the outcome of the ‗coming together‘ of the
nationalities. Indeed, it is clearly stipulated in the preamble and Article eight that the ‗nations, nationalities
and peoples are sovereign.‘
 The Constitution is considered as the reflection of the ‗free will and consent‘ of the nationalities. It is, in the
words of the framers, ‗a political contract‘ and therefore only the authors that are the nationalities should be
the ones to be vested with the power of interpreting the constitution. To this effect, the HoF that is com-
posed of the representatives of the various nationalities is expressly granted the power to review the
constitutionality of laws and of course other essential powers as well.
 The second reason is related to the first. The framers were well aware of the fact that empowering the judiciary
or a constitutional court may result in unnecessary ‗judicial adventurism‘ or what some prefer to call ‗judicial
activism‘ in which the judges would in the process of interpreting vague clauses of the constitution put their
own preferences and policy choices in the first place., this might result in hijacking the very document that
contains the ‗compact between the nationalities‘ to fit the judges‘ own personal philosophies.
 Both are false b/c then the time EPRDF was not in a position to believe in courts. it has had a
great fear of courts b/c they were the abusive machineries during z repressive military govt.
 Organization of the judiciary in a federal system
 The Ethiopian judicial system theoretically speaking is organized on a dual basis in which there are two
parallel court systems, the federal courts and the state courts with their own independent structures and
administrations.
 There is a question as to whether the division of power inherent in federalism applies for judicial power to
the extent of requiring each order of government to have its own court system.
 On the one hand there is the view that state courts subject to review by the Supreme Court are sufficient to
protect the interest of the federal government.
 On the other hand, there is a view that federal courts like federal executive agents are desired to effectively
implement the power of the federal government. If one takes the federal principle of division of power
strictly, not only are legislative and executive functions divided between the federal government and the
states, but judicial authority too is divided.

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  FDRE Cons‘n gives some hint about the organization of the judiciary. It states that supreme federal judicial
authority is vested in the federal Supreme Court. It is only one Court with nationwide jurisdiction.
 With the recent decision of parliament to establish inferior federal courts a full-fledged dual court structure
is on its way, at least in five regional states. As a result there are inferior federal courts in some states while
the delegated power seems to continue in three other states, Oromia, Amhara and Tigray
 In a nutshell, there may obviously be, like other powers, exclusively federal, exclusively state and shared
judicial powers.
Jurisdiction
 The Ethiopian judicial system, compared to other federations, stands constrained in its jurisdiction.
 Firstly, judicial powers are being taken away from the regular judiciary to special other tribunals whose
constitutional status remains controversial.
 despite the constitutional clause under Article 78(4) stipulating that ‗special or adhoc courts which take
judicial powers away from the regular courts or institutions legally empowered to exercise judicial
functions, there are controversial tribunals introduced from time to time by the federal legislature and they
do seem to dismantle the court‘s jurisdiction.
 But still access to justice. It is stated ‗everyone has the right to bring a justiciable matter to and to obtain a
decision or judgment by, a court of law or any other competent body with judicial power.
 While the tribunals are unavoidable they should either be autonomous or else the highest judicial organ as
in the Supreme Court should exercise judicial power on specific grounds. The trouble in Ethiopia is that
such tribunals are neither autonomous nor subject to review at a higher level.
 Although the judiciary arguably has power to interpret the constitution, it has no power of reviewing the
constitutionality of laws.
 The judicial branch‘s power of reviewing decisions of several other tribunals is far from clear and the Court
has not yet established it beyond doubt.
The Power of Cassation
 The minutes of the Constitutional Assembly also suggest that the federal Supreme Court has the power of
cassation not only over federal matters but also on state matters and even more interestingly the federal
Supreme Court reviews state matters in which the state Supreme Court has rendered a final decision by way
of cassation.
 There is a contrary view saying practice should not justify the wrong interpretation of the law. Ethiopia has
adopted a dual court structure and the practice distorts the structural set-up of the courts. This approach
forces one to interpret ‗any court‘ under Article 80 of Proc 25/96 (it must be limited to the delegated
function of the state courts.)
 Basing the principle of federalism, when a matter is assigned to belong to a state jurisdiction it is based on
the view that the matter is of local rather than of national importance.
 Guaranteeing uniformity is often limited to federal laws, and not to state law.

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CRIMINAL LAW

CHAPTER-ONE

INTRODUCTION TO CRIMINAL LAW

 General Considerations
 The Place Of Criminal Law In Criminal Science:
 Criminal Law is the body of law defining crimes against the community at large, regulating how suspects
are investigated, charged, and tried, and establishing punishments for convicted criminals.
 ―Crime‖ is an offence committed by an individual who is a basic unit of a society. Therefore, study of
crime i.e. Criminal Science‖ is a social study. The main aims of Criminal Science are:
 To discover the causes of criminality,
 To devise the most effective methods of reducing the amount of criminality,
 To perfect the machinery for dealing with criminals.
 Branches of Criminal law
 Criminal law in its wider sense consists of two branches.
1. Substantive Criminal Law: it lays down the principles of criminal liability, defines offences and prescribes
punishments for the same.
2. Adjective/Procedural Criminal law: (operative part of the substantive law) the procedural criminal law is to
administer the substantive criminal law and give enforcement to it.
 Four important elements of efficient criminal law:
 Politicality: it implies that only the violations of rules made by the state are regarded as crimes.
 Specificity: Specificity of criminal law connotes that it strictly defines the act to be treated as crime. (the
provisions of criminal law should be stated in specific terms.)
 Uniformity: implies its uniform application to all alike without any discrimination
 Penal sanction: the members of society are deterred from committing crimes. No law can be effective
without adequate penal sanctions.
 General Objectives of Criminal Law
 Protection of persons and property; by maintenance of law and order
 Deterrence of criminal behavior: The presumption inherent in criminal law is that if we make the
punishment sufficiently harsh, persons who might do something criminal are prevented from doing so
because they fear punishment. The problem is to decide how much punishment will deter criminal
behavior.
 Punishment of criminal activity: punish for sake of punishment. And
 Rehabilitation of the criminal: Upon release, there should be no reason to return to a life of crime.

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 ―The purpose of the Criminal Code of Federal Democratic Republic of Ethiopia is to ensure order,
peace and the security of the state, its peoples, and its inhabitants for the public good‖.Art.1
 ―It aims at the prevention of crimes by giving due notice of the crimes and penalties prescribed
by law and should this be ineffective by providing for punishment of criminals in order to
deter them from committing another crime and make them a lesson to others, or by providing
for their reform and measures to prevent the commission of further crimes.‖ Art. 1 Para 2 lays
down that, this paragraph states ―What‖ the function of criminal law is.

 Classification of Wrongs:
 Wrongs
 Acts forbidden by the Society:-
 Moral wrongs: - Interference of law is considered Unnecessary.
 Legal Wrongs: - where the interference of law is necessary.
 Civil wrongs: - Law interferes at the instance of the injured party.
 Criminal wrongs: - State as a matter of right interferes in most of the cases.

 General Meaning of Crime

 Crime is a ―Public Wrong‖
 CRIME is A ―Moral wrong‖
 Crime is A ―Procedural Wrong‖
 Crime is a ―Creation of Government Policy‖
 Crime Is A ―Legal Wrong‖

 Crime Distinguished From Civil Wrongs:-

 ―Crimes‖ are said to be harms against the society, while ―Torts‖ are wrongs against individuals.
 ―Tort‖ is a private wrong and the remedy available is reparation for the injury suffered and not
punishment. The remedies unlike criminal law do not involve punishment but performance of
obligations and payment of damages. Unlike criminal law, the state will not be involved in the
dispute or litigation.
 Torts also include certain harms or damages caused by fault. But unlike criminal offences non-
contractual liability may arise irrespective of fault (strict liability) or due to harm caused by
others for whom a person is answerable (vicarious liability).

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  ―Analogy‖ is forbidden in criminal cases (Art. 2 (1), The Criminal Code, 2005), but may be
permissible in Civil (i.e. contractual and tort) cases where legal provisions embody illustrative
(rather than exhaustive) lists. Criminal cases require certainty beyond reasonable doubt while the
preponderance of evidence in the balance of probability suffices in civil cases.
 In a crime and a tort there is a breach of „right in rem‘ whereas in a breach of contract there is
breach of „right in personum‘.
 Crime is a public wrong. „Tort‟ is a private wrong committed against an individual. Criminal
proceedings are conducted in the name of the state. In civil cases it is the injured party that brings
the action against the wrong-doer.

 Sometimes the same injury such as negligence, defamation, amulet etc, may fall under both the
categories.
 To have a criminal case of trespass, there must be an intention of depriving a person of his
property unlawfully with the knowledge that the land from which that person is deprived belongs
to that person. If a person in the honest belief that a piece of land belongs to him, takes his cattle
to graze on that land or cuts trees growing on that land, that does not amount to criminal trespass,
such acts may amount to civil trespass for which a civil action for damages may lie.

 Factors that necessitated the revision of the Penal Law (1957) of Ethiopia ( Reason for Coming in
to existence of the 2005 Revised Cri-code) :-
 To Incorporate the Modern Legal Concepts: recognition of modern legal concepts by the Constitution and
the international agreements ratified by Ethiopia were the major.eg. Equality between nations, nationalities
and peoples, democratic & Human rights, the rights of women and Children.
 To Fill in the Lacunae: to incorporate advanced technological crimes & traditional harmful practices. eg.
High Jacking of aircraft, Grave injuries and sufferings caused to women and children by reason of harmful
traditional practices.
 To Adopt a Comprehensive Criminal Code: It is desirable to adopt a comprehensive Criminal Code by
putting together various Criminal provisions in the Negarit Gazeta in a disintegrated manner.
 Punishments for Certain Offences Increased: punishments in respect of crimes like rape and aggravated
theft have been increased.
 Matters Concerning the Determination of Sentence Revised: Provisions of the Penal Code that used to
make sentencing complicated and difficult have been amended.
 Purpose of Criminal Law and Objectives of Punishment Redefined

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 Classification of Crimes
 Generally, offences may be classified based on two criteria:
1. Classification based on the ―Seriousness of the Crimes‖.
2. Classification based on the ―Subject matter‖ of the Crime.

 Classification based on the „seriousness of the Crime‟:-

 Treasons are the most heinous, eg. a crime against the state
 ‗Felony‘ is a serious criminal offence punishable by at least one year imprisonment.
 ‗Misdemeanor‘ is a criminal offence which is less serious than a felony, and is usually
punishable by no more than a year. These include all offences which are not felonies and
treasons.
 The Criminal Code of FDRE has not adopted such a ‗tripartite‘ distinction & intentionally abandons them.
 But, the code simply classifies crimes into various titles on the basis of content:
 ―Crimes of very grave nature‖ are punishable with ‗rigorous imprisonment‘ in Central
Prisons for a period of one to twenty five years (Art.108)
 ―A crime of not very serious nature‖ that may face ‗simple imprisonment‘ for a term of ten
days to three years (Art. 106), that may extend the period beyond three years.
 ―Petty offences‖: are punishable with fine or arrest for a relatively shorter period of one day
to three months (Art .747), subject to certain aggravating exceptions (Art.767-769).

 Classification Based On the “Subject Matter” Of The Crime (under the criminal
code):
 Interests of the ‗State‘: Crimes against state or against National or international interests, Arts.
237-374.
 Interests of the ‗Community‘: Crimes against the Public Interests or the CommunityArts.378 –
537.
 Interests of the ‗Individual‘: Crimes against the individuals and the Family Arts.538-733.

 A ‗petty offence‘ is an infringement of a mandatory or prohibitory provision of a law or regulation

issued by a competent authority or a minor offence which is not punishable under the Criminal Law.
Such acts or omissions are made punishable under the Petty Code.

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 CHAPTER-TWO

BASIC PRINCIPLES OF CRIMINAL LAW

 The most important of such principles embodied in the Criminal law, specifically, are the following:

1. The Principle of Legality:-

 Art.2 of the cri.c
 No crime no punishment, without a violation of penal law as it existed at the time
 The principle requires that prosecutions and punishments for crimes should be strictly in accordance
with a pre-existing legal provision.
 The policy behind the principle of legality is that ―fair warning‖ should be provided to a criminal so
that he does not inadvertently commit a crime that he has no reason to believe is illegal.
 The principle conveys four different rules, namely:
 Certainty in Legislation (penal law must be clear, certain and unambiguous language),
Accessibility of the law,
 Rule of strict Construction (since criminal cases endanger the life and liberty of the person
charged each element of the provision shall be fulfilled & strictly interpreted.
 Analogical interpretation is prohibited), and
 Non-retroactivity of penal laws.
 Application of ex-post facto law in the criminal field is prohibited.
 But, Application of the More Favorable Law exceptionally allowed under, Art. 6 criminal c. & 22
sub.2 of the cons‘n: this is an exception to the rule of non-retroactivity of criminal laws (this rule is an
element of legality principle).
 This principle forbids double jeopardy; No body shall be punished twice for the same crime, (Art
2/5). No person can be tried or punished more than once for the same crime.

2. The Principle of Equality:

 Article 4 of the Cr.c.
 There should not be any discrimination in the application of Criminal Laws.
 All men are born equal and must be treated equally.
 There should be ―Equality before the law‖ and ―the equal protection of the laws‖ should not be
denied. (Equal justice).
 Under Art 25 of the constitution, ―All persons are equal before the law and are entitled without any
discrimination to the equal protection of the law‖.

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  Three exceptions to the principle of equality (under art.4 cr.c):
 Immunities sanctioned by Public International law,
 Immunities sanctioned by Constitutional law (Art. 54 (5) & (6) and 63 Cons), and
 Requirements of individualization of Criminal Justice (penalty is purely personal to the
criminal, such as his age, mental condition or antecedents- special treatments given to
women, children and feeble minded persons.).

3. The Principle of Individual Autonomy

 Each individual should be treated as responsible for his or her own behavior.
 This principle has factual and normative elements.
 The factual element in autonomy is that individuals in general have the capacity and sufficient free
will to make meaningful choices.
 The normative element: the individuals should be respected and treated as agents capable of
choosing their acts and omissions, and that without recognizing individuals as capable of
independent agency they could hardly be recognized as moral persons.

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 CHAPTER- THREE

JURISDICTION OF THE ETHIOPIAN CRIMINAL CODE

(Arts 11-22 of the Criminal Code of FDRE, 2005)

 Fundamental Principles Of Application Of Jurisdiction:

1. The Principle of Territoriality

 courts of the place where the crime is committed may exercise jurisdiction
 the principle has received universal recognition
 Advantages; convenience of the forum and presumed involvement of the interests of the state where
the crime is committed.
 Types; Objective (the state in which the act is done) & Subjective (the state in which the
consequence is occurred).
 Art.11 Cr.C
2. The Protective or Security Principle
 States assume jurisdiction over acts done abroad which affect the security of the state.
 Currency, immigration, and economic crimes are frequently punished by the states under this
principle.
 Art. 13 Cr.c
3. the Nationality Principle:
 Types : Active Personality & Passive Personality
 Active Personality; a state of the nation of the offender will have jurisdiction. According to this
principle, crimes committed in foreign countries by Ethiopian citizens may be tried in Ethiopia [Arts.
14, 15, (2) and 18 (1)].
 Passive Personality; a state of the nation of the victim will have jurisdiction. Aliens (foreigner) may
be punished for acts abroad harmful to the nationals of the forum. This is the least justifiable of all the
bases of the jurisdiction.
 Art. 17(1) of the Criminal Code incorporates this principle.

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 4. the Principle of Universal Jurisdiction:
 Based on the nature of crime
 As matter of international public policy.
 Crimes by stateless persons in areas not subject to the jurisdiction of any state, Hijacking and
crimes related to traffic in narcotics etc. are subject to the universal jurisdiction.
 The Ethiopian Criminal Code incorporates this principle in relation to i) crimes committed
against international law (Art. 17) & ii) Art. 18(2).

 Jurisdiction of criminal code of FDRE, 2005

(Arts. 11-22)

 Principal jurisdiction or original jurisdiction, art. 11-16

Territorial Jurisdiction:-
 crimes committed in Ethiopia
 Art.11 (normal case, crimes triable by Ethiopian courts)
 Art. 12 (special case, crimes triable in foreign courts by delegation.)

Extra-Territorial Jurisdiction.
 Crimes committed outside the territory of Ethiopia
 The Ethiopian Criminal Code extends its principal jurisdiction to not only the crimes committed
on the territory of Ethiopia but also to certain special kinds of crimes committed outside her
territory.
 Arts 13-16 of the Criminal Code (principle of quasi-territoriality)
 The Criminal Code envisages three specific instances that necessitate the extraterritorial application
of its jurisdiction: it is where Crimes committed by:
 Any person in a foreign country against interests of Ethiopia, Art. 13, (Crimes against the state of
Ethiopia & Crimes against Ethiopian currency)
 An Ethiopian enjoying immunity in a foreign country Art. 14,(the crime must be punishable both
under Eth. Criminal law & the foreign state)
 A member of Ethiopian Defence Forces in a foreign Country, Art 15 (2).

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 Subsidiary jurisdiction: (derivative jurisdiction) art.17-20 Cri.c
 It is also referred to as derivative jurisdiction as the Ethiopian Courts derive the jurisdiction from
the foreign courts (Ethiopian Courts substitute foreign courts).
 Relates to crimes that do not directly and chiefly concern Ethiopia.
 These crimes also are committed extra-territorially
 Applies to the following categories of crimes: Art. 15(1), 17/1/a & b, 18(1)

 Conditions for Application, Art.19 sub1.

 Exemption of Conditions for application, Art.19(2)
 Subsidiary jurisdiction of the Criminal Code applies to crimes committed by members of the
Defence Forces against the ordinary law of a foreign country, crimes committed in a foreign
country against international law or international crimes specified in Ethiopian legislation, or
against an international treaty or convention to which Ethiopia has adhered, crimes committed in a
foreign country against public health and morals, crimes committed abroad against an Ethiopian
national or crimes committed by Ethiopians while abroad provided that the crime is punishable
under both the laws and is grave enough to justify extradition.

 The time and place of commission of crime: Art. 25

In case of a completed crime
 The General Rule: Sub- Art, (1) para.1
 With regard to Non-Instantaneous Crimes (Where the act and the result are at different times & d/t
places): Sub- Art. (2) para.1
 In cases of combination or Repetition of Acts: Sub- Art. (3)

In case of an attempted crime

 The General Rule: Sub- Art. (1) para.2
 With regard to Non-Instantaneous attempt, Sub- Art. (2) para 2

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 Extradition:
 Definition: it denotes the process whereby under a treaty (bilateral) or upon a basis of reciprocity
(in the absence of treaty) one state surrenders to another state at its request a person accused or
convicted of a crime committed against the laws of the requesting state, such requesting state
being competent to try the alleged criminal.

 Rational for Extradition

 The general desire of all states to ensure that serious crimes do not go unpunished
 Forum convenience & vested interest of the requesting state. (The state on whose territory the
crime has been committed is best able to try the criminal because the evidence is more freely
available there, and that state has the greatest interest in the punishment of the criminal).
 Scope: As a general rule, the following offences are not subject to extradition proceedings:
 Political crimes;
 Military crimes, for example, desertion; (treating war crimes as political crimes for the purpose of
extradition).
 Religious crimes.
 Most states follow the rule of double criminality: it is a condition of extradition that the crime is
punishable according to the law both of the state of asylum and of the requesting state.
 The Principle of Specialty: the requesting state is under a duty not, without the consent of the state of
refuge, to try or punish the criminal for any other crime than that for which he was extradited. This
principle is sometimes applied
 Art.21 of the cr. C

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 CHAPTER- FOUR

CONDITIONS OF CRIMINAL LIABILITY

 The elements of criminal liability are the legal, material (omission or commission) and mental
elements of the crime. The Legal element consists of sub-principles that include: the principle of
legality, non- retroactive effect of Penal Laws, jurisdiction and period of limitation.
 The material element of the crime includes preparation and attempted offences. It also covers
causation (link between the act and the result) in cases where the offence requires a result to be
constituted.
 Mental element covers intention in the form of direct or indirect with its legal effects, negligence in
the form of conscious or unconscious with its legal effects, and the standards of measuring
negligence.

 The Essential Elements (Ingredients) of Crime:

 These are: The legal element, material and moral element
The Legal Element of Crime:
 Law must exist and this law must be violated so as to hold a person criminally liable.
 No act or failure to act may be regarded as an offence unless the law so prescribes, (Art.2Cr.c), Art.
23.
 The law which prohibits the crime should be in force, not only when the act is committed, but when it
is punished, except in cases where the defendant benefits.

The Material Element:

 The material element of a crime may be classified as commission, omission (Where there is a Duty
Imposed by Law), and commission by omission (Where there is a Duty Recognized by Law).
 It is undesirable to punish one merely for his/her thoughts.
 ―material ingredients‖ means facts surrounding the act, such as, the type of weapon used, place and
time of commission of the offence, range of shooting, the part of the body of the victim hit by the
bullet, etc.
The „moral ingredients‟ of crime
 Refers to the state of mind of a criminal at the time of committing the unlawful act.
 What was going on in the mind of the accused at the time of commission of crime
 No presumption of guilty. ―Accused persons have the right to be presumed innocent until proved
guilty‖.Art.20 (3) of the FDRE cons‘n.

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 The principle is provided under Article 57 of the Criminal Code; ―No one can be punished for an
offence unless he has been found guilty thereof under the law. A person is guilty if, being responsible
for his acts; he committed an offence either intentionally or by negligence.‖
 Awareness (Knowledge) is a pre requisite for the presence of intention, art.58 (1).
 Criminal intention necessarily implies awareness (Knowledge).to be intentional a person
must be aware of his act. For example, a person does not intentionally commit homicide if he
is not aware of the fact that his target is a human being, (Mistake of fact, Art. 80).

 Intention can be direct or indirect

Direct intention,
 Art.58 (1) a, it consists a clear foresight of consequences, and a desire for consequences. (State of
mind of a man who not only foresees but also wills or desires the possible consequences of his
conduct.)
Indirect intention (“recklessness”.)
 Art.58 (1), b; in this state of mind, the criminal does not desire the occurrence of the harm. However,
he is aware of the possible consequences while, he accepts the occurrence of possible harm in order to
achieve his own object. (A man may foresee the possible or even probable consequences of his
conduct and yet not desire them to occur. In spite of this foresight if he precedes on his course of
action he knowingly runs the risk of bringing about the unwished result.)
 In ‗indirect intention‘, the offender does not foresee the harm as a certainty (or near certainty)
but only as a possibility.
 No one can be convicted under Criminal Law for an act penalized by the law if it was performed by
force major, or occurred by accident.

Criminal Negligence Art. 59

 It constitutes criminal guilt of a lower degree.
 Negligence is not taking care where there is a duty to take care. In negligence, there is a state of mind
in which there is absence of desire to cause a particular consequence.
 The standard of care established by law is that of a reasonable man in identical circumstances
(not ideal reasonable man, but reasonable man in the circumstances of the accused)
Art59/1/(b) due consideration has to be given to subjective factors such as the ―age,
experience, education occupation and rank‖ of the accused.

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 Negligence
 Article. 59/1 provides: ―A person is deemed to have committed a criminal act negligently where
he acts:
 (a) By imprudence or in disregard of the possible consequence of his act while he was aware
that his act may cause illegal and punishable consequences; or
 (b) By a criminal lack of foresight or without consideration while he should or could have
been aware that his act may cause illegal and punishable consequences.‖
 The essential elements of the provision are:
 Acting by imprudence or ( inadvertent)
 Being aware that his act may cause illegal and punishable consequences acts in disregard of
such consequences, or (Advertent)
 Acting by a criminal lack of foresight, or (Advertent)
 Acting without consideration of possible consequences while he should or could have been
aware that his act may cause illegal and punishable consequences.(Inadvertent)
 A careful consideration of these essential elements of negligence reveals two kinds of negligence:
 Advertent (conscious) Negligence.
 Inadvertent (unconscious) Negligence
 It is the element of ―consciousness‖ in bringing about the consequences that differentiates these
two forms of negligence. In both cases criminal lack of foresight or imprudence must be proved.

Advertent Negligence
 (Meaning and Distinction from Indirect Intention :)
 Acting in disregard of possible consequences defines conscious type of negligence. In this form
of negligence the criminal, like in the case of in direct intention, foresees the possibility of some
harm but disregards (or rejects) its occurrence.
 Under indirect intention the criminal accepts the occurrence of the possible harm
whereas in the advertent negligence the person rejects the possibility of the harm which
in fact materializes as a result of his negligence. Philippe Graven gives the following
illustration to clarify the point. ‗A‘ is driving a car and ‗B‘ his passenger, points to him
that he drives too fast and might hit someone, to which the driver replies ‗you needn‘t
worry, I am a good driver‘ …
 A moment later, ‗B‘ again insists that the driver should slow down. ‗A‘ then answers,
―I‗ve told you that I am a good driver. Anyway, it is 2 o‘clock in the night, the police are
asleep and nobody will see us if something should happen.‖ Thereafter, ‗A‘ runs down a

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 pedestrian who dies had the accident taken place after the first statement he had rejected
the possibility of hitting someone (advertent negligence). But, after he made his second
statement ―it is virtually certain that he had accepted the possibility of causing a result,‖
there by entering into the realm of indirect intention.

Inadvertent Negligence
 Meaning and Distinction from Advertent Negligence:
 Acting without consideration represents the unconscious type of negligence. Under inadvertent
negligence the accused is not aware of a possible harm. The offender does not foresee the result at
all.
 For example, the accused believing that the gun is unloaded pulls the trigger and to his
surprise finds some one injured. It cannot possibly be a case of pure accident since he is
handling a deadly weapon, which requires the exercise of care and caution on his part. His
failure to take care makes him liable for negligently injuring the person. In the same
example, if the offender having foreseen the possibility of hitting ‗B‘ but disregarding the
same, shoots at a certain target and unfortunately injures ‗B‘, his state of mind may be
described as advertent negligence.
 NB: Art. 59/2 provides that, ―crimes committed by negligence are liable to punishment only if the law
so expressly provides…‘‘

 Distinction between Different Forms of mens rea Under the Code

 Art. 58
Criminal Intention
 Direct intention
 There is full knowledge i.e., awareness of consequences accompanied by with (intent).
 The foresight is certain or nearly certain as to the consequences.
 There is desire for the consequences.
 Clear foresight of consequences.
 Indirect intention
 There is awareness of consequences and unwillingness to renounce the code of conduct.
 The foresight is not certain but awareness of the possibility of the consequences is present.
 There is no desire for consequences but disregards and runs the risk of possible harm.
i.e. accepts the occurrence of possible harm.
 Uncertain foresight.

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  Art.59
Criminal negligence
 Advertent negligence
 There is awareness of consequences but disregards the possibility.
 There is awareness of possibility of consequences.
 Rejects the occurrence of the possible harm.
 Criminal lack of foresight.
 Inadvertent negligence
 There should or could have been awareness of consequences but lack of consideration of the
same.
 Failure to foresee the consequences
 Lack of foresight. i.e, failure to exercise care. Does not foresee at all.
 Imprudence

 Relationship of Cause and Effect (causation in law): Art.24 cr.c

 Art. 24. of Criminal Code, lays down the principle that, ―a person is answerable for the
consequences of his act or failure to act only in so far as there exists a relationship of cause and
effect between his act or failure and the consequences.
 There may be several causes bringing about one result of which the nearest possible
cause affords a good ground for criminal liability.

 Tests to Establish the Relationship of Cause and Effect:

Sine qua non test or the Theory of Absolute Causation:

 Which means ―without which not‖ – an indispensable condition or an important prerequisite.
Consequences.
 An act in the absence of which the result would not have been achieved is deemed to be the
cause of such result.
 For example, if ‗A‘ strikes ‗B‘ and ‗B‘ gets injured. ‗C‘ drives ‗B‘ to a doctor but the car
crashes on the way and ‗B‘ dies in the crash, ‗A‘ will be held liable for B‘s death.
 However, criminal liability cannot be established through the sine qua non test

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 Adequate or Proximate Cause Test
 In the above eg. The striking alone could not result in B‘s death and it is obviously the car accident
and not the striking, which in this case is the ―cause‖ of death.
 The second paragraph Art. 24/1 states that an act or omission may not be deemed to have caused
the harm in issue unless this act or omission ―…would, in the normal course of things produce the
result charged‖.

 Factors That Might Break the Chain of Causation (Art.24(2)):

 Where there are preceding, concurrent or intervening causes, whether due to the act of a third
party or to a natural or fortuitous event, which are extraneous to the act of the accused, this
relationship of cause and effect shall cease to exist when the extraneous cause in itself produced
the result.. If, in such a case, the act -with which the accused person is charged in itself constitutes
a crime he. Shall be liable' to the punishment specified for such a crime.
 Relationship of cause And effect shall be presumed to exist between each cause specified under
sub article (2) above and the result achieved, when the result is the cumulative effect of these causes,
even though each cause cannot independently produce the result.

Preceding Causes
 A preceding cause is the one that exists even before anything is done by the accused towards
commission of the crime.
 The act of the accused and the result produced cannot be said to have been established where the
preceding cause has contributed materially to the result produced. Example, ‗C‘ who was
suffering with high blood pressure problem met with a car accident while taking a morning walk.
He sustained some minor injuries and was hospitalized. Shortly afterwards he died in the hospital.
The cause for his death was extensive bleeding which could not be controlled due to his high
blood pressure. Therefore, the person responsible for the accident can be held liable only for
causing injuries by negligent driving but not for causing death.

Concurrent Causes
 When a given result may be attributed to two or more simultaneous causes.
 Both are equally liable for the crime, if the result is the cumulative effect of both causes (each
cause cannot produce the result independently, but they can cumulatively).

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 Intervening Causes
 When a given result may be attributed to a multiplicity of causes. The difference between this case
and the case of concurrent causes lies in the time element involved. Here is consecutive (not
simultaneous) events has caused the harm in issue.
 For instance, if ‗A‘ beats up his child and inflicts on him an injury that, though not fatal,
makes it necessary that he is admitted to. The child, while under treatment at the hospital,
catches some deadly infectious disease and dies. There is no doubt that the efficient cause
of the child‘s death is not the injury, but the disease. The latter is an intervening cause,
the effect of which is that no chain of causation exists between the beating up and the
death since, the initial act done by ‗A‘ could not, in the normal course of things, produce
the result eventually achieved. To put it in the words of Art. 24 (2), the extraneous cause
was in itself sufficient to produce the result.

 “Physical Element” Of Crime:

 Where there is no Physical Participation:

 A man may be held fully liable although he has taken no physical part at all in the actual
commission of the crime. In these cases, the accused may not be present on the scene of occurrence
and even sometimes be far away from the place of occurrence. i.e principals and accessories,
incitement and conspiracy.
 Where Participation is Indirect
 A person will be held fully ―responsible if he has made use of an ―innocent agent‖ to commit a
crime. In these instances, the innocent agent is guiltless and is not responsible criminally, but the
one who had brought about such results intentionally or recklessly is held criminally liable.
 Where another Person has intervened
 Cases might arise in which it would appear that the harm would not have occurred but for an act or
omission of the accused, but in fact it could be established that the more direct and immediate cause
of the harm was the intervention of some other person. CASE: Facts: The prisoner, who was an in-
charge of a steam Engine, had stopped the engine and gone away. During his absence, some
unauthorized person has set the engine in motion and it has killed the deceased. He was indicted
(charged) for manslaughter. Judgment: The court held that the death was the consequence, not of
the act of the prisoner but of the person who set the engine in motion after the accused had gone
away. Thus, ―the defense of intervention of another‖ is successful and the prisoner was exonerated
from liability.

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 Concurrence of Crimes- Guilt In Case Of Concurrence Crimes Art. 60-67
 ‗Concurrence‘ of crimes occurs in either of the following two ways:
1. When several unlawful acts are done in contravention of one or more articles of the law.
 This type of concurrence is known as concurrence of crimes or Material Concurrence, see Art 85.
For example, if a criminal robs B‘s shop and C‘s residence. If the criminal in addition ravishes a
maidservant while robbing C‘s residence, there is a material concurrence of three crimes, i.e., two
crimes of robbery and a crime of rape.
 Materially concurrent crimes may be ‗independent‘ or ‗related Art 65‘. In some cases, related
crimes whose components fall under different provisions are in combination embodied in a special
aggravated crime (185/2) For instance, Coercion (Art-582) and ‗theft‘ (Act. 665) is embodied in
‗robbery‘ (Act. 670).
2. When one unlawful act is done in contravention of several articles of the law.
 This is called concurrence of criminal provisions or Notional Concurrence, Art.85. A single
criminal act or omission may give rise to concurrent crimes by violating two or more provisions.
For instance, if a married man ravishes his relative in a public place he is punishable for four
crimes. The crimes of rape (Art.620) incest (Art.654), adultery (Art.652) and public indecency
(Art. 639) arise from the criminal‘s single act (Simultaneous Notional Concurrence.)
 Under this type of concurrence, if the criminal is proved to have caused one of them with criminal
intention or negligence, he is held guilty of all the crimes because they invariably occur at the same
time from the same causal relation.
 ‗Notional concurrence‘ may also include a non- simultaneous combination of crimes as stated in Art. 66, where
by causation and the particular state of mind must be proved independently for each of those crimes. Eg.
Concurrence of intentional arson and the resulting negligent homicide (Art. 66/1/b).
 Rules Regarding Determination of Punishment in Cases of Concurrence:
 Cumulative of punishment is not allowed in all cases of concurrence because under certain circumstances the
cumulated punishment may go beyond a person‟s lifetime. The only exception where cumulative punishment
is permissible is in case of material concurrence of petty offences as stipulated in Art. 768.
 Upon finding concurrence of crimes, the court, according to Arts. 184-187:
 Imposes a penalty on the most severe crime, and
 Aggravates the penalty without exceeding the maximum limit allowed in Art.184.
 Period of Limitation in Criminal Cases:
 This refers to the cessation for the application of the Criminal Law for the purposes of conviction and
punishment.
 Articles 216-228 of the Criminal Code, Cumulatively with Article 28(1) of the FDRE Constitution.

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 CHAPTER- FIVE

DEGREES IN THE COMMISSION OF CRIME

Art.26-30 of the cri.c

 What degree should be reached in the carrying out of the criminal design in order to regard a person
as having fulfilled the material element of the crime. What is the border line to consider a These
include Intention, preparatory acts, attempt, renunciation, active repentance, impossible offence and
special cases of attempt.
 Certain situation as material element of the crime and what is not?
Preparation (Art. 26):
 Encompasses all those situations from the moment that a person conceives the idea of committing a
crime up to its consummation.
 Criminal laws do not in principle punish preparatory acts.
 These preparatory acts are not punishable as a general principle for two main reasons. That is, it is
difficult to safely conclude that a person manifests the material element of the crime due to the
equivocal (ambiguous) nature and remoteness of the preparatory acts towards the offences intended to
be committed.
 Art.26; ―Acts which are committed to prepare or make possible a crime, particularly by procuring the
means or creating the conditions for its commission are not usually punishable, however, such acts
are punishable where:-
a. In themselves they constitute a crime defined by law; (eg. retaining a gun without license) or
b. They are expressly constituted a special crime by law by owing to their gravity or the general
danger they entail‖. For example, material preparation of offences against the state (Art. 256,
257), preparing a mutiny or seditious movement (Art. 300) and preparing machinery and means
of counterfeiting currency (Art. 371)
Attempt
 It is a substantial but unsuccessful effort to commit a particular offence.
 Kinds of Attempt:
 Incomplete Attempt,Art.27:
 The last act, which is critical to the crime, is not performed.
 Failure to perform the last act is due to; the offender himself preference (voluntary withdrawal/change
of mind) or due to extraneous cause (external interventions).
 If the accused chooses not to do or is prevented from doing the last act of the crime, the attempt is
said to be incomplete.

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  “Complete Attempt”
 the wrongdoer has performed everything on his/her part
 Unlike incomplete attempt, here, the last critical act is performed. But, the desired result is not
achieved due to ether of two causes:
a. Due to situations beyond his/her control.
b. Active repentance (felt to achieve the result due to the active involvement of the perpetrator
him/herself). Eg. of complete attempt; the attempt is considered complete if the criminal‘s
intentional shot, for instance, misses the intended victim.
 Impossible Attempt”
 Art. 29: Certain attempts are incapable of achieving the desired result. Such attempts involve
situations where a criminal attempts ―to commit a crime by means or against an object of such a
nature that the commission of the crime was absolutely impossible‖.( absolute impossibility and not
relative impossibility).eg. Failure to achieve result because of an unloaded gun is an absolute
impossibility due to the means used
 NB: all attempts are punishable (Art. 27(2)) where as all preparatory acts are not punishable (Art. 26)
 One is said they have attempted a crime when he begins to commit the crime. Preparing to commit
a crime does not amount to beginning the execution of the crime.
 When the intended consequences are achieved by the conduct of the accused, the crime is said to
have been completed

 Renunciation And Active Repentance:

 Renunciation is provided under Article 28 of the Penal Code as ―if an offender of his own free
will renounce the pursuit of his criminal activity.
 Renunciation exists when the criminal activity is abandoned absolutely.
 Active repentance: the failure to achieve the result after the completion of the act may also occur
when, after having performed all the acts to bring about the desired result, the perpetrator himself
either prevents or contributes for the prevention of the result. This is what is called active
repentance which is dealt with under Article 28(2) of the Penal Code that reads: If an offender,
having completed his or her criminal activity, of his or her own free will prevents, or contributes
to prevent the consequent result, the court may without restriction reduce the punishment
(Art.180).

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 CHAPTER SIX

PARTICIPATION IN THE COMMISSION OF CRIME

 A crime can be committed by several persons who participate in the commission of a crime at
different or same capacities.

 Participation can be

1. Participation in Principal Capacity

 Material criminal
 Moral criminal
 Indirect criminal
 Co-offenders (in general crimes & special crimes)
 NB: principal criminal or criminals may not be liable for what goes beyond their intention unless it is
possible to prove negligence on their part as per Article 58(3) of the Criminal Code.

2) Participation in secondary capacity

 Incitement
 Complicity (accomplice)
 Criminal conspiracy (agreement)
 Participation of juridical persons in a crime
 Accessories after the fact
 NB: participation in second degree properly consists incitement & accomplice. Which are performed
only before & during the crime. But, Not after. Accessories after the fact are those persons who do
not participate in the crime but give help for the principal offender after the realization of the offence.

1) Participation in Principal Capacity

 In Ethiopia, principal participation is defined broadly that it takes the forms of material, moral
and indirect offenders. These forms of principal participation are provided under
 Article 32 of the Criminal Code.
Material Criminal:
 Article 32(1) (a)
 It can be directly or indirectly.
 It is direct when every person directly, physically or personally commits the offence.
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  It could also be indirect when the perpetrator commits the crime by using instruments like
animals or natural force.
 It can be intentional or negligent
 Eg. A person is a material criminal in a crime of homicide if he or she takes the life of
another.
 There can be more than one principal party as a material criminal when more than one actor
participates in the actual commission of the crime.

Moral Criminal
 Article 32(1) (b)
 Moral Criminal is a person who fully associates himself/herself with the commission of the crime
and takes the crime as his or her own even though he or she is not present at the time when and the
place where the crime was committed.
 Moral criminal is a person who plays no part physically in the commission or omission of the
offence.
 These persons are considered to be working brains or master minded.
 Eg. Suppose that Worku organizes a group for the purpose of robbing a bank, decides the
time and place of the crime, the means to be used in committing the same but stays at home
while the crime is being committed. He can be considered as the moral criminal who
facilitates the commission of the crime. He, however, cannot be taken as the material
criminal of the robbery as he did not personally involve in the commission of the crime. He
is also not an instigator as he himself decided and initiated the execution of the offence.
Indirect Criminal
 Article 32(1) (c)
 Such a party to a crime uses an intermediary to commit a crime.
 they could be two or more persons
 Indirect criminal refers to a person to the persons listed below:
 Compel another to commit a crime. This is the case when Tariku, under a gun point orders
Fekadu to cause bodily injury upon.
 Employ mentally deficient persons in the course of the execution of a crime.
 Use an irresponsible person that can come under Articles 48-50.
 Use infants who are immature persons as provided under Article 52.
 Use another person by taking the advantage of his or her mistake or ignorance as per Articles 80
and 81 of the Criminal code.

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 Co-criminals:
 Article 32 and 33
 Ethiopian Criminal Code define co-offenders broadly so as to include all principal parties who
involve in the commission of the crime either as a material criminal, moral criminal or indirect
criminal.
 Each shall be liable to the same punishment. Provided that personal circumstances will be
considered.
 Co-criminals may, in fact, be of with or without conspiracy.
 Persons may also be categorized as co-criminals in general crimes (when the crime in question
can be committed by any one. Eg. homicide, theft, robbery) and special crimes(eg. Desertion,
rape, adultery, incest, corruption).

2) Participation in the Secondary Capacity:

 This refers to the involvement of persons in the commission of a crime in the second degree.
 Participation in this case is less than the principal criminals.
 Secondary participation refers to incitement and complicity (before or during the commission of
the crime).
Incitement:
 Article 36
 This form of participation is secondary before the commission of the crime.
 The crime should be committed or at least attempted.
 inducement must be carried out intentionally
 The instigator will be liable to punishment under the law for the intended crime.
 The principal offender is punished alone for what goes beyond the intention of the instigator.

Complicity(accomplice):
 Article 37
 It is also a secondary participation which may exist either before or during the commission of the
offence
 It is a situation where gives assistance to the principal criminal either before or during the
commission of the crime with the intent thereby to promote or facilitate the commission of a
crime.
 the assistance given to the principal criminal should always be intentional

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 legal effects of complicity:
 Like incitement, the accomplice is liable for the punishment under the law regulating the
intended crime.
 Similar to case of incitement, the accomplice will not be liable for what goes beyond his
intention.

Criminal Conspiracy:
 Conspiracy is defined as an agreement between two or more persons to do something unlawful.
 The crime of conspiracy is completed at the moment when two or more persons have agreed that
they will do at once or at some future time an act which is unlawful. It is completed even if there
is no further act to put the agreement into effect.
 In the Ethiopian law, conspiracy, as a rule, is not considered to be an independent crime. Rather,
it is a ground for aggravating punishment when persons participate in the commission of a crime
based on prior agreement.
 Though our law disregards the act of conspiracy as an independent crime, Article 38(2) provides
exceptions that it is taken as an independent crime
 conspire to commit crimes against the state and its defense
 forming of unlawful associations and the participation therein
 as well as to the organization of gangs
 Participation of Juridical Persons in a Crime:
 Juridical person is defined under Art. 34(4)
 Corporate are held liable for the acts of persons acting in their names, Art. 23 (3).
 Administrative bodies are not punishable for crimes they commit, though they are juridical
persons

Accessories After The Fact:Art.40

 Accessory refers to a person who gives assistance to the principal criminal after the realization of
the crime. The form of assistance may be, hiding and aiding the criminal.
 Receiving or hiding a property, which is obtained by a crime committed by the criminal an
assistance given to the criminal after the commission of the crime is independent crime, which is
d/t from accomplice. Because there is no participation in the commission of a crime once it has
been completed.

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Part II

CHAPTER- ONE

CRIMINAL RESPONSIBILITY

 General Defenses: - are circumstances that relieve an accused from conviction of guilt and its
consequent penalty. These are general defenses, to all crimes (excuses and justifications) & special
defenses 4 special crimes.
 The Criminal Code of 2005 does not follow this dichotomy.
 Excuses are defenses that arise because the defendant is not blameworthy for having acted in a way
that would otherwise be criminal. The focus is on the individual criminal rather than on the crime
committed.
 Defenses that arise when the defendant has acted in a way that the law does not seek to prevent are
called justification defenses. When there is an attack on legally protected rights, the steps taken to
reverse the attack is justifiable act.

 Criminal Responsibility and Irresponsibility

 Responsibility is a person‘s mental fitness to answer in a court for his/her action. Persons are
criminally liable only if they are responsible for their acts.
 Responsibility or irresponsibility is concerned with the criminals‘ awareness and their capabilities
to control their action.
 Irresponsibility may arise in three cases. With regards to adults, it may arise from insanity or
intoxication, and with regards to infants, it may arise from their immaturity.

Absolute Irresponsibility: Art. 48

 Responsibility could not be defined in a positive, but only in a negative manner, and this is why
most codes including the ours do not describe responsible but irresponsible persons.
 Insanity: -
 Is a complete defense to a criminal charge. He has no mens rea. a defendant first,
does not know the nature and quality of his act (no act requirement), second he
does not know the wrongfulness of his act (no mens rea).

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 Limited Responsibility: Art. 49
 It is guilty but mentally ill. Such a person may neither be relieved of liability, since he is not fully
irresponsible, nor should he be liable to a full punishment, since he is not fully responsible.
 This is a question of degree may arise. In most cases only expert evidence will enable the court to
decide whether and to what extent the accused is irresponsible.
 A person is not partially responsible for the sole reason that he is of low intelligence or poor
education.

 Intoxication-Intentional or Culpable Irresponsibility: Art. 50

Voluntary and Involuntary Intoxication
 The main deference between Art. 50 and 48, 49 is not the bio-psychological condition of the offender
but it is the condition that creates the irresponsible nature of the offender. It is the doer who puts
himself into a condition of irresponsibility or of limited responsibility by means of alcohol or drugs or
by any other means.

 Infancy/Immaturity 0-9 age: Art. 52

 An infant is incapable of distinguishing between right and wrong and so no criminal responsibility
could be fastened in regard to his deeds.
 Young person‟s 9-15, are criminally liable b/c.
 First, persons begin to understand the nature of their acts, to be able to form a
decision and to keep to it between the age of nine and fifteen. Their intelligence
and volition develop and become gradually closer to those of adults.
 Secondly, the commission of a crime shows that the time has come to take action
because no action has been taken at home or school or it has failed.
 The primary aims of any action taken with respect to young persons are and must be education and
correction. To make them useful citizens.
 Transitory Age 15- 18: the court has three options.
 First, it may order any of the penalties applicable to adults and mitigate it
according to article 179.
 Secondary, it may order one of the special penalties applicable to young persons.
 Finally, the court may order special measures applicable to young criminals based
on the conditions laid down under article 177.

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 CHAPTER TWO

AFFIRMATIVE DEFENSES

 It is legal defenses against a criminal charge.

 Lawful, Justifiable and Excusable Acts:
 The Ethiopian Code does not follow lawful(acts done in circumstances which legitimate them) ,
justifiable (acts done in circumstances excluding intentional guilt) & excusable (acts done in
circumstances reducing the degree of guilt) classes of acts with respect to which the ordinary rules
concerning criminal guilt do not apply or fully apply.
Lawful Acts
 Are Acts required or Authorized by Law: Art.68, Because of the existence of the legal right or duty to
act, the act, which would otherwise be criminal, is a legitimate one for which the doer is not
punishable.
 Acts Relating to Public, State or Military Duties
 Right of Correction or Discipline: - Art.2039(c) of the Civil Code impliedly authorizing the
parents, guardians and masters to use reasonable use of force for the purposes of chastisement.
Art.576/3 of cri.c limits this right.
 Exercising Private Rights: - Arts.1148 and 2076(2) justify the protective actions of a holder.
 Professional Duty: Art. 69- Acts done in the exercise of a professional duty come within the general
category of acts authorized by law. It is exempted b/c the fact that the act is ordered by law.
 If a doctor terminates a pregnancy on medical ground and report that to the right authority, as
he is required to so by law, he would not be punished for breach of professional secrecy.
 Consent As a Defence: Art. 70- Consenting to donate any of his bodily parts.
 Coercion/Duress: Arts. 71 & 72- a defense that the actor engaged in the conduct charged to constitute
an offense because he is coerced to do so by the use of, or a threat to use, unlawful force against his
person or the person of another, which a person of reasonable firmness in his situation would have
been unable to resist.
 Like an insane person or intoxicated person he is totally deprived of his freedom of choice and
therefore equally deserves the same treatment as long as the loss of will power is involuntary.
 Superior/Subordinate Relation: Arts. 73 & 74- arises when a person commits an offense on the order
of someone to whom he owes obedience. In both administrative and military superior.

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 Necessity and Legitimate Defence
 General State of Necessity: Arts.75-76- the doing of harm is the only alternative to the suffering of harm. Sometimes called
an ―act of God,‖ fire, a storm, earthquakes, or shipwreck necessary acts, unlike acts done in legitimate defense, are not
deemed to be lawful. In case of necessity the actor does not have the right to protect his interests at the expense of those of
another and is not authorized by law to cause harm so long as he is not threatened with or subjected to, an unlawful attack.
 Under the 1957 penal code, the defense of necessity covers everyone who falls in a state of emergency. The second
paragraph of Art.75 provides for an exception where necessity is not a defense notwithstanding that all the necessary
conditions to raise the defense is met.
 There must be a Danger
 The Danger must be Serious
 The Harm must be Proportional
 The Danger must be Imminent
 The Danger Could Not Otherwise Be Averted
 The absence of fault on the side of the doer. If a person intentionally creates the situation of necessity.
 Legitimate Defense: Arts. 78, 79- when a person is suddenly faced with an attack to his person or property and immediate
aid from the state machinery is not available, that person is entitled to defend himself and resist the attack and to inflict on
the attacker any harm that is necessary for the purpose of defense.
 Legitimate defense is one specific type of necessity, and therefore has much in common. In both cases, a situation of distress
arises which cannot be solved otherwise than by the doing of harm. Differences:-
 necessity is basically one of aggression while an act under Art 78 is one of defense,
 The doer of a necessary act, unlike a person who defends himself, is not resisting an unlawful assault.
 In the case of necessity the conflict occurs is between two legitimate interests but in the case of legitimate-defense
the conflict occurs is not between two legitimate interests.
 Mistake of Fact, Mistake of Law and Ignorance of law: Arts.80&81
Mistake of Fact and Mistake of Law
 Mistake or ignorance of fact can serve as a defense if it negates the state of mind (mens rea) required for the crime.

 A fact may consists of, a phenomenon perceptible by the sense. ( e.g. the doer mistakes arsenic for sugar) or a state of
mind (e.g. the doer believes that someone intends to kill him).
Mistake of Law and Ignorance of Law
 Ordinarily means mistake as to the existence of any law on a relevant subject as well as mistake as to what
the law is.
 Ignorance of the law has rarely been sufficient to excuse criminal conduct. It is permitted as a defense only
in situation in which the law is not widely known and a person cannot be expected to be aware of a
particular law (foreigner).
 In Eth, Art.81 (2) CC, ignorance of law is not excuse but the court may reduce the punishment.
 Art.81 (3) states that in exceptional cases of absolute and justifiable ignorance and good faith and where
criminal intent is not apparent, the court may impose no punishment. This stand of the criminal code shows
that it stands in a half way between the two schools (no defense & defence with exception).

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 CHAPTER THREE

CRIMINAL PUNISHMENT AND ITS APPLICATION

 Definition and Purpose of punishment

 Definition of Punishment: - Broadly speaking punishment is the response of the society to socially
dangerous behavior.
 Purpose of Punishment
 Retribution- punishment satisfies the feeling of revenge.
 Deterrence:- the purpose of the punishment is to deter the criminal from committing crime in future
and to set as an example to the prospective criminals.
 Prevention/Incapacitation:- to prevent the criminal from committing crimes by physically disabling
him by separating him and keeping him in seclusion from the society for a certain period of time.
 Reformation /Rehabilitations- to change the character of the offender. The effort to restore a man to
society as a better and wiser man and as a good citizen.
 Kinds Of Punishments
 Ordinary punishments applicable to Adults –Book II, Title I, Articles 90-156.
 Measures and penalties applicable to young persons-Book II, Title I Articles 57-177.
 Penalties and measures applicable to Petty offences-Petty Code, Book VII Title II Art 746-764.
 three categories of punishments mentioned in Articles 90-156:

I. Principal penalties II. Secondary penalties III. Special measures applicable to Adults

Principal Penalties - can be put under the following heads:

 Pecuniary Penalties-art. 90-102- Fine, Sequestration & Other pecuniary effects
 Punishments Restricting or Depriving Liberty – Art. 103-116- compulsory labour, Imprisonment
1. Simple Imprisonment- art106
2. Rigorous Imprisonment-art 108
Death Penalty
 Art. 117-120- the most precious right to life embodied under Art 15 of the Constitution which obviously
permits the deprivation of life as a punishment for serious crimes without doubt is interpreted subject to the
most important international instruments that guarantee the right to life.
Secondary Penalties
 Before imposing a secondary penalty the court has to pronounce a primary penalty, which it deems to be
appropriate for a crime. However, they may replace the principal penalty under the conditions stated by the
provision of article 122(2).

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 Special Measures Applicable to Adults
 Have the purposes of reforming and educating the person so that he abstains from committing further crime
when he gets back to the society after serving his sentence in the prison.
 Measures applicable Irresponsible persons and criminals with limited responsibility
 General Measures for the Purposes of Prevention and Protection
 Measures of a Material Nature (Guarantee of Good Conduct, seizure of all dangerous articles)
 Measures Entailing Restriction on Activities (Suspension and withdrawal of a license, Prohibition and
closing of an undertaking)
 Measures Entailing a Restriction on Personal Liberty (Prohibition from resorting to certain places,
Prohibition to settle down or reside in a place, Obligation to Reside in Special Place or Area, Placing under
Supervision, Withdrawal of Official Papers, Expulsion)
 Measures for the Purpose of Information (Notification to the Competent Authority, Publication of the
Judgment, Entry in the Judgment Register)
 Determination Of Punishment:
 General Principles of Determination of Punishment: Arts. 87-89
 Extenuating Circumstances 82-67
 Post-Conviction Processes
 Suspension of penalty and conditional release,
 Pardon and Amnesty 129 & 130
 Reinstatement Arts.232-237
 Differences between Pardon and Amnesty:
 Pardon is remittance of penalty while amnesty is a general pardon especially for political crimes against
government.
 Pardon is granted by the competent authority whereas amnesty is granted by the appropriate competent
authority.
 In pardon, the remission of sentence may be whole or in part and in amnesty, it is always complete
remission.
 Pardon may completely remit the penalty or commute the same to a penalty of lesser nature or gravity.
 Pardon may apply to all penalties and measures whether principal or secondary. But amnesty may be
granted in respect to certain crimes and certain classes of criminals only.
 The order of pardon may determine the conditions to which it is subjected to and its scope. Amnesty may
be either absolute or subject to certain conditions and obligations.
 Pardon shall not cancel the sentence. However, amnesty, cancels both the indictment and the sentence and
bars or discontinues any prosecution from the moment of its promulgation.

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TAX LAW

CHAPTER ONE

 General Introduction
 Definition and Classification of Taxes
 Taxes are defined to be burdens, or charges, imposed by "the legislative power of a state upon
persons or property," to "raise money for public purposes." It is a power inherent in sovereignty,
and without which constitutional government cannot exist.
 A tax is a compulsory contribution of persons toward the needs of government.
 that a tax involves coercion upon its bearers,
 who are in every case, either natural or legal persons, and
 A specific public purpose as its end. Taxation includes the processes of levying, collecting,
and paying taxes.
 A commonly applied classification of taxes is into direct and indirect taxes. The classification of
taxes into direct and indirect owes to the relationship between the nature of the taxes and the
reason for payment of the taxes.
 A direct tax- the taxpayer is not able to pass the burden to someone else. Accordingly, direct taxes
are paid entirely by those persons on whom they are imposed.
 An indirect tax- is a tax whereby the taxpayer‘s burden to pay the tax can easily be passed on to
another person.
 In sharing of revenues, taxes are grouped into three: central (that of the Federal
Government), regional and joint.

 General Theories and Principles of Taxation

 An individualistic theory - Every person needs, say, protection and justice, and experience
shows that these can best be obtained in a society; the taxes he/she pays may be a quid pro quo, a
payment for the services rendered.
 socialistic view- a State can be considered as the most definite institution in society; and, further,
since from one point of view wealth has no meaning except in a society, the part played by that
society in the production of wealth may be looked upon as making the State "the residual owner
of all income which exceeds the requirements of maintenance and normal growth‖.
 The two central principles of taxation relate to the impact of tax on efficiency (concerned with the
allocation of resources) and equity (fairness) (concerned with the distribution of income).

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  Efficiency can be measured against three standpoints: administrative costs, compliance costs and
excess costs. These three relate to the cost of operation of the tax system, to its flexibility and
certainty.
 Equity or fairness is further highlighted by two principles: the ability-to-pay principle and the
benefits principle. The ability-to-pay principle implies two things:

 Horizontal Equity: People in equal positions should be made to pay the same
amount of taxes.
 Vertical Equity: A tax system should distribute the burden of paying taxes fairly
across people with different abilities to pay.

 General Introduction to Fiscal Federalism and Division of Revenues under the Ethiopian
Constitution
 Fiscal federalism is the study of how competencies (expenditure side) and fiscal instruments
(revenue side) are allocated across different (vertical) layers of the administration.
 It is the division of public sector functions and finances among different tiers of government.
 While fiscal federalism constitutes a set of guiding principles, a guiding concept that helps in
designing financial relations between the national and sub-national levels of the government,
fiscal decentralization on the other hand is a process of applying such principles.
 The main economic rationale behind fiscal decentralization is improving efficiency of public
resource utilization, creating enabling environment for private sector development and the growth
of the national economy.
 The ideas of fiscal federalism are relevant for all kinds of government, unitary, federal and con-
federal.
 Application differs because unitary and federal governments differ in their political & legislative
context and thus provide different opportunities for fiscal decentralization.
 Fiscal federalism is a general normative framework for assignment of functions to the different
levels of government and appropriate fiscal instruments for carrying out these functions.
 Fiscal federalism in Ethiopia has been adopted within a unique political landscape of ethnic
federalism.
 Fiscal federalism derives its nature and characteristics from constitutional provisions as well as
the state of economic development, the pattern of income and resource distribution, and the
institutional capacity of the system.

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 The Ethiopian Tax Reform of 2002
 Coupled by a series of reduction in the import tariff, excise tax and income tax and widening of the
budgetary deficit, introducing a neutral and efficient tax, i.e. the VAT with broad tax base VAT was
considered. Since January, 2003.

 Major Types of Taxes in Ethiopia

1. Value Added Tax (VAT) - This is a sales tax based on the increase in value or price of product
at each stage in its manufacture and distribution.
2. Excise Tax - this is imposed and payable on selected goods, such as, luxury goods and basic
goods which are demand inelastic. It is the tax on goods that are hazardous to health and which
are causes to social problems will reduce the consumption thereof. ('Excise Tax Proclamation No.
307/2002')
3. Turnover Tax- this is an equalization tax imposed on persons not registered for value-added tax
to fulfill their obligations and also to enhance fairness in commercial relations and to complete
the coverage of the tax system.
 Administrative feasibility considerations limit the registration of persons under the value-added tax to
those with annual transactions to the total value exceeding 500,000 Birr.
 Rate of turnover tax is 2% on goods sold locally and 10% on others; Proc 307/2002.
4. Income Tax- income taxable under the Ethiopian Income Tax Proclamation No. 286/2002.
5. Business profit tax- taxable business income of bodies is taxable at the rate of 30%

 Sources of Ethiopian Tax Laws

 Tax laws basically emanate from legislative, administrative and judicial sources.
 The first law that can be taken as a source is the FDREC which has numerous provisions dealing with
the administration of taxes. Then after, there are a number of proclamations and regulations dealing
with taxes in the country.

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 CHAPTER TWO

INCOME TAX

 General Definitions and the Notion of Income

 According to the Proc 286/2002, income is defined as ―every sort of economic benefit including
nonrecurring gains in cash or in kind, from whatever source derived and in whatever form paid
credited or received‖. Its sources are listed down in Article 6.
 ‗Gross income‟ is taken to mean the total or aggregate income received by an individual.
 ‗Taxable income‟ refers to the amount of income on which actual income tax is charged, levied
and collected after all deductions have been made in accordance with the relevant laws.

 Income Tax Jurisdiction: Global Jurisdiction on Residents and Source Jurisdiction on non-
residents
 Income Tax Proclamation of 2002 reveals that, in Ethiopia, income tax has global jurisdiction on
residents whereas it has a source jurisdiction on non-residents.
 the proclamation has applicability on non-residents of the country to the extent that the source of
their income is in Ethiopia, art 3/2
 The Foreign Tax Credit- Article 7- if during the tax period a resident derives foreign source
income, the Income Tax payable by that resident in respect of that income shall be reduced by the
amount of foreign tax payable on such income.
 However, the reduction of the Income Tax shall not exceed the tax payable in Ethiopia that would
otherwise be payable on the foreign source income.

 The Scheduler System of Ethiopian Income Taxation

 There are the global and the schedular systems of taxation.

Global System
 in the global system of income taxation is that the tax is imposed on the total income of an
individual regardless of the types of activities that he/she pursues and regardless of the sources
from which he/she obtained his/her income. Individual has to declare his/her aggregate income
for the purpose of taxation.

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 The scheduler system
 Takes the different sources of income of an individual into consideration for the purpose of
taxation.
 Income is identified by its sources and each source has its own procedures and rates for the
determination of income tax; thereby requiring an individual to declare his/her income from each
source separately.
 Each source of income is considered to have its own identifying unique features for the purposes
of taxation.
 Before taxation, sources of income have to be properly identified according to the correct
schedule set by the system.

Schedule A Income- collected from employment.

 Articles 2(12) and 12 employment is any arrangement, whether contractual or otherwise, whereby
an individual to be called the employee is engaged, whether on a permanent or on a temporary
basis, to perform services under the direction and control of another person to be called the
employer.

Schedule B Income- earned from rental of buildings.

 The principle that tax has to be paid on income from rental of buildings remaining as it is, a
taxpayer who leases furnished quarters is liable to pay tax on the income that he/she receives
from the lease of the furniture and equipment in the leased quarters.

Schedule C Income- earned from businesses, i.e. from entrepreneurial

activities.
 Article 2(6) business or trade refers to ―any industrial, commercial or vocational activity or any
other activity recognized as trade by the Commercial Code of Ethiopia and carried on by any
person for profit.‖
 Businesses (bodies) are required to pay 30% flat rate of business income tax; and other taxpayers
under Schedule C, i.e., unincorporated or individual businesses are required to pay taxes ranging
from 10% to 35% according to the table.
 The periodic cost expiration is called depreciation. There are three factors that need to be taken
into consideration while calculating an asset‘s depreciable cost, Initial cost, Residual value; and
Useful life.

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 CHAPTER THREE

VALUE ADDED TAX

 Brief Introduction to the Predecessors of VAT in Ethiopia

 The concept of VAT was propounded first by American experts by 1920‗s. But at that time,
Americans failed to implement it. The modern concept of VAT was truly introduced in France
(1954).
 In France, it was introduced to satisfy high demand of revenue on the part of the government in
order to rebuild France from the civics of WWII. More than 123 states adopted.
 In Ethiopia, VAT was introduced since January 1, 2003 designed to replace the out dated sales
tax, which has served for more than four decades, which was collected at manufacturing level.
 In other areas of taxation, where VAT is not regularly governing, turnover tax is
introduced.

 The major rationales behind introducing VAT in Ethiopia are

 Sales tax doesn‘t allow collection on the added value created wherever sales transaction is
conducted but VAT does.
 VAT allows little room for evasion. Taxes in VAT are collected at multi stages and business
entities are allowed to have refund on the tax they paid for inputs (raw materials such as labor,
transportation, ware housing, etc).
 VAT enhances saving and investment. VAT is a consumption variety tax. The fact that the final
burden lies on consumers raises awareness to have means of reduction of payment for
consumption at any possible incident. This undoubtedly will change the extravagant way of life
imposed from the custom, on the part of final consumers.
 Out dated sales tax is not capable to generate adequate revenue for the government to cover
necessary expenditures.

 VAT from other sales taxes

 VAT appears to be imposed on business entities as it belongs to sales tax family. In reality
however, business entities are simple agents to collect tax from individuals, who bear the final
burden, final consumers.
 sales tax is normally levied at one stage of the whole marketing

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  The VAT proclamation does not provide flat definition for VAT. Blacks law D ―VAT is a tax
assessed at each step in the production of a commodity based on a value added at each step by the
difference between the commodities production cost and its selling price‖
 Types of VAT
 Gross product type - taxes paid on purchases of capital goods fixed capitals and depreciations
there to be not allowed to be refunded.
 Income type - refund on the purchase value of capital goods is prohibited like in case of goods
product type of treatment. But, unlike the previous one, it allows refund on the periodic allowance
for the depreciation value of capital goods.
 Consumption type- the most used and widely accepted in most states of the world. All business
purchases including that of capital goods and related depreciations are allowed to be rebated.

 Advantage of VAT
 It avoids cascading effect of a tax (Tax on Tax) - VAT works when raw material passes through
various manufacturing stages and manufactured product passes through various distribution
stages, tax should be levied on the incremental value at each stage and not on the gross sales
price.
 It is a more comprehensive and equitable tax system- Even though the ultimate burden of VAT
falls on the final consumer, VAT is collected by the government from all sectors, that is, from
import, manufacturing, who sales and retail sectors.
 It reduces the possibility of tax evasion - In each stage, every transaction is made using VAT
invoice approved by the Tax Authority. In addition, each VAT register person (supplier) has to
maintain appropriate records on their sales and purchases transaction those obligations make tax
evasion difficult.
 It has less tax burden - the tax is collected in small fragment at different stages of production and
sales, hence, the VAT payers feel the burden of the tax less.
 It is neutral - VAT is expected to be perfectly neutral in the allocation of resources in the form of
production and commercialization b/c it is collected at each stage.
 It improves productivity- a firm has to pay tax even though it runs into loss. The firm cannot
claim any exemption for loss because it pays taxes on the value produced and not on profits. So,
firm will always try to improve their performance and reduce the cost of production.
 It promotes capital investment and saving- VAT is a consumption tax since one pays VAT on its
expenditure and has the option to save so as not to be taxed. Furthermore, relief from tax on

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 capital goods may encourage investment. Potential investors also consider tax legislation as one
of the factors in making investment decision.
 It enhances exports - Exports of goods and services in most countries that implement VAT are
liable to VAT at zero-rate. This may make export internationally competitive and, thus,
encourages exports.

 Criticisms on VAT
 It is regressive in nature - A straightforward single rate VAT with few exemptions would tax
lower income groups (the poor) more heavily than the higher income groups (the rich. No ability
to pay. In order to compensate for its regressive effect, a number of countries have exempted
basic goods particularly food items from VAT.
 It requires advanced economic structure- it also requires proper record keeping of invoices at each
stage of production and sale by both the seller and buyer.
 It puts additional burden to tax authority- In VAT system, the manufacturers, wholesalers and
retailers have to fulfill various legal formalities in the form of maintaining various records,
accounts, books, etc. the verification of those formalities puts additional burden to the tax
enforcing authorities.
 It is uneconomical - VAT system involves high cost of administration, assessment, verification,
collection, etc. hence, it is highly uneconomical.
 It has ream loopholes for tax evasion - Although VAT system requires proper record keeping of
invoices at each stage of production and distribution by both the buyer and seller, it has ream
loopholes for tax evasion. This may include
 Taxpayers could over report sales of zero rated goods;
 Taxpayers could use invoices they received for personal purchase to claim tax credit;
 It enables buyers and sellers to strike secret deals with regards the issuance of receipts;
 It could lead to the formation of forged companies receipts to claim tax credit on input
VAT, etc.

 Taxable activity- art 6

 Taxable Transaction- is a process. It is related with supply of goods or rendition of services, Art
7(3).

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 Registration for VAT
 Obligatory Registration- Pursuant to Art 16(1) if the total taxable turnover (transaction) over a period of
12 months exceeds 500,000 Ethiopian birr; the person shall be registered for VAT.
 Voluntary Registrations- Anybody interested may apply for voluntary registration .But Art 17 provided a
condition that shall be satisfied.
 Zero-Rated Transactions- In Ethiopia, two rates are recognized on taxable transactions: Standard rate and
zero-rate, where the standard rate is 15% and zero rate 0%.
 Zero-Rated Transactions is taxed at zero-rate of tax. In other words, the transaction by itself is taxable
subject to VAT in the sense included under Art 7(3) ―taxable transaction‖ But, the Law has given blessings
so that the transaction (supply of goods or rendition of services) are completely free from tax.
 Zero-rated transactions are directly or indirectly connected with export goods or services to make domestic
exporters more competent before international arena.
 Exempt Transactions- is a transaction not subject to VAT. Thus the transaction is not considered taxable
transaction for social, economic or development reasons. Art 8/2
 In zero-rated transactions & exempt transactions of course, in both transactions, persons are free from
payment of taxes under VAT. But, Pursuant to Art 23, a registered person making exempt transaction is not
entitled to deduct input tax payable on its acquisition related to the making of exempt supplies and is not
entitled to issue covering exempt supplies. A person that purchases goods or services exempt from tax is
not entitled to clams an input tax credit for any tax in relation to the prices of those purchases, even if
acquired for use in taxable activity, because the item was not purchased in a taxable transaction.
 VAT-on Imports- Art 2(9) ―import of goods‖ is to mean bringing goods in to Ethiopia, according to
customs legislation. Art 14 & 15
 Tax Payable, Tax Credit Taxation and VAT Records
 The simple arithmetic difference obtained by deducting creditable taxes from all taxable transactions. Art
20 & 21 , 23
 Tax credit (deductible tax) is an incentive that encourages persons to be participant in VAT enforcement.
 Powers of Levying and Collection Enforcement for VAT- the federal government that has power to levy VAT
in Ethiopia. But, VAT requires cooperation; regions are given delegations to collect.
 Regarding collection enforcement mechanisms, the FIRA (federal Inland Revenue authority) is entrusted.
 Penalties and Criminal Offences
 Engaging in taxable transactions without registration
 Issuing incorrect invoice
 Issuing invoice without registration for VAT
 Failure to maintain tax records, file timely etc

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 CHAPTER FOUR

TURNOVER TAX

 Scope - its scope is on supply of goods, rendition of services, persons not registered for VAT
 Unlike VAT, where the threshold to identify persons subject to it is 500,000 birr ,turn over tax is
applicable for those whose annual transaction is below this amount save voluntary registration for
VAT.
 to equalize and enhance fairness in commercial relations
 Make complete the coverage of tax system so as to increase government‘s revenue from
taxation.

 A rate of Turnover Tax- Art 4 incorporates two kinds of rates: 2% on goods sold locally and for
services rendered locally again in two rates: 2% for contractors, grain mails, tractors and combine-
harvesters and 10% on others.

 Obligations of Tax Payers under the Turnover Tax Law

 Filing of Turn over Tax Return and payment- art 10
 Keeping Recodes- This obligation is common in income Tax proclamation and VAT
proclamation.
 Notification of changes in business name, address.

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 CHAPTER FIVE

EXCISE TAX

 Introduction
 Excise tax is one variety of sales tax like VAT and turn over tax but unlike turn over tax and VAT, it
is applicable not on all kinds of goods rather on selected goods. It is imposed on luxury goods and
basic goods which are demand inelastic, hazardous to health and societal problems. Proc No
307/2003
 Specific excise tax is imposed based on the amount of the item subject to tax. But advalorem is
calculated out from the value of the good.

 Rationales to employ Excise Tax (ET)

 To improve government revenue by imposing excise tax payable on selected goods.
 To redistribute income and narrow the gap between rich and poor.
 To reduce their consumption hazardous to health and which are cause to social problem.
 Products subject to Excise tax- The scope of application of excise tax proclamation is
determined by the schedule attached to the proclamation. Applicable to goods which are either
produced locally or imported from other countries. Art 3.
 Goods or products are related to luxury goods, goods dangerous to health and that cause serious
problems to the society, ranging from perfumes to tobacco and tobacco products.
 Tax-rates, Bases and Payment of Excise Tax
 The rate varies from 10% in textiles and textile products to 100% for other alcohol drinks,
perfume and toilet waters; and motor vehicles above 1800 C.C.
 Cost of production is taken as base to calculate the amount to be imposed on goods produced
locally. In respect of goods imported, the base of computation of the tax is cost, insurance and
freight (export rather than import is encouraged).
 In case of VAT, persons are allowed to deduct costs of productions/ inputs in general. But in
excise tax, since attached with luxurious and dangerous product, the value of the object imported
insurances and freight, are not deducted.
 Obligation of Tax Payers
 maintain books and accounts in accordance with accounting principles;
 submit to the authority necessary information for proper collection of the tax;
 comply with inspections by delegates of the tax authority; and
 Respect all the obligations mentioned in the proclamations.

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 CHAPTER SIX

CUSTOMS DUTIES

 Introduction
 Customs duty is tax like other taxes but imposed on imported goods or exported goods.
 It is the best instrument to prevent or reduce importation of goods. It serves as trade brevier
whenever a state needs to ban or reduce importations to her territory, it can imposed high rate in
some good (excise taxation).
 Powers and Objectives of Ethiopian Customs Authority ERCA
 proclamation No 60/1997 amend by Proc.no 368/2003
 Customs Control and Administration
 Time of control- The supervision time begins from the time they reached the customs port
through the completion of customs formalities until received by the importer in case of imported
goods.
 Treatment of Means of Transportation- Means of transportation is also under the control of the
authority. Any master of means of transport engaged in the importation or exportation of goods
assumes a number of obligations as per Art 16 of proc No 60/97.
 Declaration, Examination and Release of Goods- Customs declaration is lodged after the
arrival of goods at the port. The application for customs declaration helps to clear goods from the
authority with in short period of time.
 Goods in Transit, Temporary Importation and Exportation of Goods- ―a transit good‖ is the
movement of goods from one country to another or by crossing the Ethiopian territory, or from
one customs station to another by the same or changing the means of transport.
 A custom duty as a matter of fact is imposed on imported or exported goods. But, exceptionally,
temporarily imported or exported goods may not be imposed on obligations of customs duty.

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 CHAPTER SEVEN

STAMP DUTY

 Stamp duty is another form of taxation basically imposed on the services given to individuals
through affixing seals. Stamp is an official mark or seal placed on a document especially to
indicate that a requirement tax has been paid. proc. No. 110/1998.
Bases of the Duty
 Art 3 of the stump duty proclamation exhaustively lists instruments chargeable with stamp duty.
 Memorandum and articles of association of any business organization cooperative or any other
form of association, award, bonds, ware house bond, contractor agreements and memoranda
thereof, security deeds, collective agreement, contract of employment, Lease, including sub-lease
and transfer of similar rights, natural acts, power of attorney, documents
 Exemptions from Stamp Duty - For economic, Social, or administrative reasons, Art 7.

CHAPTER EIGHT

SURVEY OF SOME REGIONAL TAXES

 Power of taxation is given to the federal government, state government or concurrently for both central (federal) and
state government.
 States in Ethiopia can impose taxation on incomes received within their territory but, they cannot have say on the
powers exclusively given to federal government.

 At this juncture, it is expected that certain questions regarding power of taxation on incomes that are not exclusively
given to either the federal or regional government nor jointly given both government will be raised. Art 99 of the
FDREC has the answer.
 Agricultural income taxes- r earned from incomes of the farmers.
 The role of regions in levying and assessing tax on an income derived from agricultural activities is high but, the mode
of assessment and collection of taxes will differ from region to region.
 Coming to the federal government the laws that govern taxation from agricultural income tax laws that govern proc
NO 152/1978. According to such proclamation, the amount declared, will be assessed by the tax authority in manner
described under the schedule of the proclamation.
 Property Taxes
 Rural Land use Tax- FDREC has given power of determination, levying and collection of taxes on rural land use
payment to states (Art 97)
 Urban Land use Tax
 Other Regional Taxes - Art 97.

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ENVIRONMENTAL LAW

CHAPTER ONE

 Introduction to environmental law

 Meaning of “Environment”- it includes the aggregate of natural, social and cultural conditions
that influence the life of an individual or community.
 Introduction to Environmental Law: From International and National Law Perspectives-
international environmental law is nothing more, or less, than the application of international law
to environmental problems.
 National environmental law includes the provisions concerning the environment in the 1995
FDRE constitution; different environmental treaties, federal and regional laws concerned with the
environment (Forestry, Land, Water use and other sectoral laws).

 Factors that Gave Rise to Environmental Law: National and International

Perspective
 The existence of an extensive range of environmental problems.
 The question of the relationship between the protection of the environment and the need for
economic development (correct balance between).

 Historical Development of International Environment Law- Rome, London,

 Following the United Nations Conference on the Human Environment, held in Stockholm in
1972, the UN established the United Nations Environment Programme (UNEP) as the world‘s
principal international environmental organization.
 Historical Development of Environmental Law in Ethiopia- at the wake of 1974 and 1984 draught
because it was believed that the draught was the result of agricultural degradation or
environmental mismanagement.
 International pressure from the international community, like the Rio Conference in 1992.

 FDRE Cons‟n Art 44, 92, The Environmental Policy of Ethiopia

 Levels of Environmental Law- international declarations, conventions, and treaties, statutory i.e.,
encompassed in the enactments of legislative bodies and regulatory i.e., generated by agencies
charged by governments with the protection of the environment.

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 The Role of International and National Laws in the Protection of the Environment
 It provides mechanisms and procedures for negotiating the necessary rules and standards, settling
disputes, and supervising implementation and compliance with treaties and customary rules.
 It is concerned with regulating environmental problems, setting common standards and objectives
for prevention or mitigation of harm, and providing a flexible rule-making process that allows for
easy and regular amendment in the light of technological developments and advances in scientific
and other knowledge.
 Reinstatement of or compensation for environmental damage is a more limited but still important
function.
 It benefits or keeps accountable individuals.

 Foundations of Environmental Law

 Religious Traditions- prohibit killing of animals & degrading of land, plants
 Traditional Communities- have long engaged in sustainable practices and developed unique
knowledge about their environments and their resources.

 The Sources and the Law Making Process of Environmental Law

 Constitutional Law
 Environmental Legislation
 Administrative Regulations
 Industry Standards and Codes of Conduct E)customary laws

 The Law Making Process of Environmental Law in Ethiopia

 The Law Making Process of International Environmental Law- no international legislature, comparable to
the national parliament, but there are generally accepted sources from which international law derives, and
a variety of international processes through which new international law is made or existing law changed.
 Nature of Environmental Problems- many of the damages done to the environment may have long term
effects or they may involve important synergism in the environment or may not be effectively reversible
environmental danger could possibly jeopardize the very existence of the present generation as well as the
future.
 Tokyo Declaration reveals that the current environmental problems are caused by factors related to u
Today, environmental problems are serious and imminent threats, which suggest a need for drastic or
emergency action sustainable use of natural resources, and unprecedented growth of population.

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 Pollution to Environment as International, Regional and National Concern
 Some environmental problems, for example climate change or depletion of the stratospheric
ozone layer, are inherently global in character.
 There are also regional environmental problems like air or water pollution and conservation of
migratory animals.

 The Rationale for the Protection of the Environment

 industrial developments had not spawned pollution and damage to the environment on a very
large scale
 Public opinion was not yet sensitive to the potential dangers of industrial and military
developments to a healthy environment.
 Nature of Environmental Damages- damage to the environment does not only cover damage to
the environment per se, but it also covers damage to private property and consequential losses
that arise there from or in connection with.

 Damages Forming New and Additional Category of Damage to the Environment

 damage to the publicly owned and publicly possessed natural resources, and to publicly owned
but privately possessed natural resources that have a particular value to the public, is damage of a
collective nature and because no concrete individual interests are harmed.
 Damages for this type of injury are in principle not recoverable under the traditional tort law.
 In respect to the scope of tort law in relation to the environment, there exists a fundamental
difference between the environment-related type of damages and damage to the environment per
se.
 Tort law covers only environmental related type of damages.

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 CHAPTER ONE

BASIC PRINCIPLES OF ENVIRONMENTAL LAW

 Prevention- the Golden Rule for the environment, for both ecological and economic reasons.
Includes prior assessment of environmental harm, and licensing or authorizations that set out the
conditions for operation and the remedial consequences for violation of the conditions.
 Precaution- scientific uncertainty should not be used as a reason not to take action with respect
to a particular environmental concern;
 action should affirmatively be taken with respect to a particular environmental concern;
 those engaging in a potentially damaging activity should have the burden of establishing
the absence of environmental harm; and
 A State may restrict imports based on a standard involving less than full scientific
certainty of environmental harm.
 Polluter Pays- Historically, pollution control costs have been borne by the community at large,
rather than by those who pollute.
 It is internalizing externalities; those who benefit from air made cleaner have a positive
externality if they do not pay for the cleanup. Where air is fouled by a producer who
bears no cost, it is a negative externality; those who buy the product also are free riders if
the fouling is not reflected in the price of the goods.
 Environmental Justice and Equity: Environmental justice seeks to ensure that authorities fairly
allocate and regulate scarce resources to ensure that the benefits of environmental resources, the
costs associated with protecting them, and any degradation that occurs (i.e. all the benefits and
burdens) are equitably shared by all members of society.
 The concept of public trust expresses the idea that the present generation holds the natural
resources of the earth in trust for future generations.
 The Integration Principle- the integration of environmental, economic, cultural, and social
considerations.
 The Public-Participation Principle- In many countries citizens may challenge government
decisions affecting the environment in court or before administrative bodies.
 The Obligation of States Not to Cause Damage to the Environment beyond Their
Jurisdiction- it is a duty to prevent, reduce and control trans-frontier environmental harm.
 States‟ Obligations to cooperate, to inform and to consult with Other States- these principles
are reflections of the principles of good neighborliness, and diligence.

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  Shared Natural Resources, Common Property and Common Heritage of Man Kind-
―Shared Natural resources‖ are used when one natural resource comes under the jurisdiction of
several states. a lake located at the border over 2 or more states

 Common property refers mainly to the living resources outside national jurisdiction, such as fish
stocks and other living resources on the high seas. Free for the legitimate and reasonable use by all
states.
 In a popular meaning, common heritage of mankind is often used as a term for global
environmental resources, such as the Earth‘s biodiversity, the tropical forests or the
atmosphere.
 The concept has a stricter meaning; it refers to two specific non-living resources outside
national jurisdiction: the sea-bed mineral resources and the moon.

 The Principle of Sustainable Development- begun to emerge prior to the UN Conference on

Environment and Development in 1992
 Is not exclusively concerned with narrow economic needs, but encompasses a broader
environmental perspective.
 is intended to serve not simply the needs of the environment, but entails a reorientation of
the world‘s economic system in which the burdens of environmental protection will fall
more heavily on the developed
 its substantive elements are mainly set out in principles 3-8 and 16 of the Rio Declaration,
sustainable utilization of natural resources; the integration of environmental protection and
economic development; the right to development; the pursuit of equitable allocation of
resources both within the present generation and between present and future generations (
intra-and inter- generational equity),
 Its procedural elements are found in principles 10 and 17 dealing with public participation
in decision- making and environmental impact assessment.

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 CHAPTER THREE

ENVIRONMENTAL RIGHTS

 The Right to Information- is a prerequisite to effective public participation in decision-making and

to monitoring governmental and private sector activities.

 Public Participation- is based on the right of those who may be affected to have a say in the
determination of their environmental future.
 Non-governmental organizations (NGOs) and groups such as trade unions or manufacturers‘
associations are an organized means of public participation in environmental decision-making.

 Access to Justice- effective remedy and redress, can be found in both human rights law and in
environmental law.
 It is not necessarily limited to nationals of a state. Some international agreements contain
obligations to grant any injured person.

 Environmental Quality- Every person has the right to a safe and healthy environment and to
compensation for damages resulting from the violation of this right.
 No global human rights treaty proclaims a right to environmental quality, although the UDHR
and other human rights instruments contain a right to an adequate quality of life and a right to
health.
 The 1981 African Charter on Human and Peoples Rights was the first international human rights
instrument to contain an explicit guarantee of environmental quality.

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 CHAPTER FOUR

COMMON LEGAL MECHANISMS OF ENVIRONMENTAL PROTECTION

 Prohibiting and Restricting Activities and Substances

 Polluting Activities- activity, product or process presents a substantial risk of environmental harm,
strict measures can be imposed in an effort to reduce or eliminate the harm.

 Use of Biological Resources- Hunting and collecting restrictions, temporary suspensions and
permanent bans on imports and exports are commonly utilized for the protection of wild flora and
fauna.

 Product and Process Standards

 Standards are prescriptive norms that govern products or processes or set limits on the amount
of pollutants or emissions produced.

 Process Standards- specify design requirements or operating procedures applicable to fixed

installations such as factories or may designate permissible means and methods of activities like
hunting or fishing.
 Product Standards- items that are created or manufactured for sale or distribution (physical or
chemical composition, handling, presentation and packaging, particularly those that are toxic).

 Emission Standards- specify the quantity or concentration of pollutants that can be emitted in
discharges from a specific source.

 Ambient Quality Standards- Ambient quality standards fix the maximum allowable level of
pollution in an environmental sector during normal periods.
 A quality standard may set the level of mercury permissible in rivers, the level of sulfur
dioxide in the air or noise level of airplanes in the proximity of residential areas.

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  Prior Licensing and Permits - hazardous installations such as nuclear plants, mines, natural gas
or petroleum works are likely to have more stringent licensing requirements than other operations.
 Article 3 of the Environmental Assessment Proclamation No 299/2002
 International requirements for licensing are increasing as part of the strong trend towards
transparency attending the trans-boundary movement and use of substances, products and
activities that might have a negative impact on the environment.

 Prior Informed Consent - is a procedural mechanism utilized in advance of activities in order to

avoid potential conflict and reduce the risks of environmental or social harm.

 Environmental Impact Assessment - is ‗a procedure for evaluating the likely impact of a

proposed activity on the environment.‘
 It is fundamental to any regulatory system which seeks to prevent or minimize environmental
harm, or to promote sustainable development.

 Monitoring- a process whereby states ‗observe, measure, evaluate and analyze, by recognized
scientific methods, the risks or effects‘ of pollution or environmental harm after the project has
begun.
 Its purpose is to check initial EIA predictions and determine whether further measures are
needed in order to abate or avoid pollution or environmental harm.

 Land Use Regulation- through zoning physical planning and the creating of protected areas.
 Zoning helps distribute activities harmful to the environment in order to limit potential damage
and allows application of different legal rules from zone to zone for more effective protection.
 A city, a region or the entire territory of a country into broad land use categories such as
residential, industrial, agricultural, forest, or nature conservation.
 Land Use Regulations and Property Rights may become in conflict.

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 CHAPTER FIVE

THE LEGAL FRAMEWORK OF ENVIRONMENTAL PROCEEDING

 Legal Personality and Standing; the Environment as a Legal Entity in Itself

 Anthropocentric Theory- it refers the relationship between human beings and the environment, as a
relationship in which environment is valuable only to the extent to which they can be used and exploited by
human beings.
 Humans and nature as separate, and human beings placed in the center; such that, the environment being
instrumental to the interest of man, the environment being instrumental to the interest of man, legal
personality can be bestowed only to human beings.
 Eco centric view- fundamentally rejects separation of human beings from nature. It considers man as
intimately connected and as such part of the natural environment.
 Acknowledges the conferring of legal personality to each distinct part of the environment
 The legal orientation of the Ethiopian environmental law, it sounds haphazard and thus ambiguous; while
the right to live in a clean and healthy environment under Art.44 of FDRE Cons‘n the anthropocentric
approach.
 The environmental policy recognizes that the species and their variants have the right to
continue existing, ecocentric view.
 Legal Personality and Standing vis-à-vis the Future Generations
 Preserving natural systems for future generations so that the human species can perpetuate itself at the
same quality of life and standard of living as the present generation.
 Preserving area of national significance due to their aesthetic appeal, historic attributes, or ecological
significance for the use and enjoyment of future generations.
 In line with the constitutional and Environmental policy cognizance of intergenerational equity, the
Environmental Law of Ethiopia defines protection of the environment to mean sustaining of the essential
characteristic of nature.

 Liberalization of Standing in Environmental Proceeding that Led to Public interest Litigation

 Under the traditional tort law, individual citizens have a right to sue only if their own personal interest is
infringed.
 Personal action would certainly help in implementing and enforcing environmental laws and could be vital
in cases where the government is unwilling to claim damages for injury to the environment.
 If democracy is for all, if the rule of law is for all, and if justice is for all then standing should be for all as
well.
 Principle 10 of the 1992 Rio Declaration and Agenda 21 to which Ethiopia is party supports a role for
individuals in enforcing national laws and obligations before national courts and tribunals.

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 Citizen Standing in Cases of Environmental Authorities‟ Inaction or Abuse: Judicial Review
 If environmental authority acting illegally causes a specific legal injury to a person or a specific group of
persons, a private action for redress would lie under the traditional doctrine of standing.
 The HPR expanded the standing in environmental proceeding to enable every citizen to challenge such
environmental authorities‘ inaction or abuse in the interest of the public, though the citizen has not yet
sustained personal injury.
 Citizen Standing to Challenge the Constitutionality of Environmental Laws- issues of constitutionality are
to be finally decided only by the HoF upon the recommendation of the council.
 Person challenging the constitutionality of an administrative action is not required to proceed to
administrative officials and regular courts. He can directly take his case to the HoF if he proves that he is an
interested party. FDRE Cons‘n Art 44(1), 92(4), Art. 11 of the Environmental pollution control proc.
 everyone has the right to live in a clean and healthy environment, and the duty to protect the
environment.(presumed 2 ‗ve vested interest)
 Citizen Standing before International Courts and Tribunals- The doctrine of exhaustion of local remedies is
a principle applicable.
 The doctrine gives cognizance to sates‘ sovereignty by bestowing them the first opportunity to solve their
problems by themselves.

 Recommendations for the Realization of Public Interest Litigation in Relation to

Environmental Proceeding
 Mushrooming Co-operative and Collaborative effort- Public interest litigation is essentially a co-operative
and collaborative effort on the part of petitioner, the state [public authority] and the court to secure
observance of the constitution or legal rights conferred upon the vulnerable section of the community.
 Realizing Conducive Environment to Public Interest Groups- There is a practical problem of funds for
public interest litigation petitions to be brought before the courts.
 Managing Conflict of Interest, and Working as Hand and Glove
 Re-form on the Law which Governs Court Fee
 Freedom of Information and the Right to Know
 The Role of Lawyers in Public Interest litigation- making pro bono a requirement for renewing practice
certificate may be one administrative mechanism to ensure compliance.
 The Creation of Separate and Independent Environmental Courts
 The Role of Courts- should be cautious and selective enough in accepting public interest litigation petitions
so as to check massive inflow of frivolous petitions.
 Pseudo Public Spirited Individuals- public interest litigation could be misused by people agitating for
private grievances in the grab of public interest and seeking publicity rather than espousing public causes.

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  Need for Mass Public Participation
 Enactment of Enabling Legislations
 Forming a Special Environmental Public Prosecutor Office
 Conducting Press Release
 Upgrading Assessment Machinery- The private losses due to the injury to the same resources are not
included because we can address it otherwise through the tort law.
 Reshuffling Environmental Institutions
 Maintaining the Safety of Public Interest Groups
 Entrenching Full-fledged Legal Action- the legal action should be against both the Environmental
Authority, and the polluter's by and through applying the law of joinder of defendants.

 Judicial Activism, and Environmental Rights Protection

 It is a legal process by which relief is provided to the disadvantaged and aggrieved party and thus where
there is a gap in the legislation or the law is silent on a specific point and prompt redress is needed, the
judiciary exercises its inherent power by virtue of being a custodian and watch-dogs of the constitution.
 One of the important justifications for judicial activism is that the legislature is uninterested in reframing
the law and that the judges should therefore assume, take over the, that task.
 The other justification is protecting the interests of the weaker, downtrodden, unnoticed or relegated
sections of the society.
 The courts in India, particularly of the Supreme Court, created a new regime of normative rights by stating
that ‗the state cannot act arbitrarily but instead must act reasonably and in the public interest on the pain of
its action being invalidated by judicial intervention.
 A) Right to Protection of Constitutional Rights B. Right to Environmental Protection

 Judicial Activism Under the Ethiopian Legal System: Emphasis on Environmental Protection
 Criticism rose were the fact that since Ethiopia is a code based and adherents to the principle of legality
which compels every interpretation of law given or forwarded by our judges to be predictable and uniform.
 It is not the function of a judge to deviate from the clearly stipulated wordings of a given legal provision
under the guise of judicial activism and to decide a given case handed to him.

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 CHAPTER SIX

REMEDIES IN ENVIRONMENTAL PROCEEDING

 Some Guidelines for Assessing Sanctions in Environmental Cases

 Seriousness of the offence
 Economic gain
 Polluter pays
 Abatement costs- ensuring payment of costs of clean up, restoration or remediation
 Ability to pay
 Constitutional Law Remedies- Article 37(2)(b) of the FDRE Constitution ensures that the door is wide open for the
public interest groups to safeguard the environment, Article 44(2) in case when any state program affects the interest of any
person, the interested party or any public interest group could demand adequate, prompt and effective compensation as a
legal remedy.

 Administrative Remedies- the establishment of the Environmental Protection Authority & other organizations is made
to facilitate.
 Formulation of policies, strategies, laws, and standards, which foster social and economic development in a
manner that enhances the welfare of humans and the safety of the environment sustainable, and to spearhead
in ensuring the effectiveness of the process of their implementation.
 Civil Liability (remedies) - , liability for a tort arises when a wrongful act complained of amounts either to an
infringement of a legal private right or a breach or violation of a legal duty (when there is public or private nuisance.)
 Nuisance - to hurt or to annoy
 Public or Common Nuisance is an act affecting the public at large or considerable portion of it; and it must interfere
with the rights which members of the community might otherwise enjoy.

 Private Nuisance is using or authorizing the use of one‘s property or of anything under one‘s control so as to injuriously
affect an owner or occupier of property by physically injuring his property or by interfering materially with his health,
comfort or convenience.

 Remedies for Nuisance in Environmental Proceeding are abatement, damages & injunction.
 Injunctive relief is a long-standing remedy that can abate pollution or other environmental harm.
 Criminal Liability- it is encompassed in the Criminal Code, and other enabling environmental statutes.
 It is to express community rejection of the conduct and send a message of ―deterrence‖ that discourages
similar misconduct in the future.
 Enforcement of Judicial Decision- The order of the court in execution proceedings constitutes a final
judgment within the meaning of Art. 320(1).
 In Ethiopia where the judgment-debtor refuses without good cause to comply with the decree; or the court is
satisfied that the judgment-debtor, although able to comply with the decree, has willfully failed to do so, the
court may order the arrest of the judgment-debtor and his detention in the civil prison for a period not
exceeding six months.

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PUBLIC INTERNATIONAL LAWS

CHAPTER ONE

 Introduction
 Public international law is the law that applies to international actions, whether committed by
States, international organizations, or even individuals.
 International laws are not written down in one book like the Civil Code of Ethiopia. There is no
international government that has authority to pass such laws.
 The domestic laws of Ethiopia – including the FDRE Constitution – are, for the most part, not
relevant in deciding Ethiopia‘s international obligations in disputes before international tribunals.
 The domestic laws of Ethiopia are extremely important in determining how international laws
will apply in the domestic courts of Ethiopia. Domestic courts often refer to treaties (and
international customs) when deciding disputes between the individual litigants before them.

CHAPTER TWO

THE STATE SYSTEM

 The stability of the State System rests on the stability of States, and for this reason international
law places a great deal of emphasis on a State‘s continued legal existence and relative
permanence of its borders.
 The State system came into being with the birth of the so-called ―nation-state‖ in Europe in the
16th and 17th centuries.
 The modern international system is still a ―State System,‖ composed of States, but many new
actors now play a role in international relations. Principal among these new actors are
international organizations like the United Nations and the WTO.
State Sovereignty
 Definition of Sovereignty and History
 A State‘s sovereignty is its independence. The word ―sovereign‖ implies some ultimate authority, a master
with no master above him, a free and autonomous entity.
 State must speak with one voice at the international level
 other States should not concern themselves with certain internal matters of a sovereign State like
the type of government a State adopts – whether monarchial, tyrannical, democratic, socialist, or
otherwise – or the State‘s religion or the way a State treats its citizens.

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  State sovereignty and the modern nation-state really came into being in 1648 with the Treaty of
Westphalia that ended the 30 Years War in Europe. The War arose in part out of tensions between
Catholics and Protestants and fears of civil strife between these two religious groups.
 The Treaty of Westphalia resolved religious tensions by giving each State the power to determine
religious affairs within its own territory (birth of the modern secular state.)

 Erosion of State Sovereignty

 eroded by international laws and international bodies; that such laws and such bodies tend to
restrain the activities of States from the outside, WTO, ILO

 Theories of State Behavior

 interest-based theories (states act rationally to maximize their interests.) including realism,
institutionalism, and liberal theory; and
 Norm-based theories including constructivism and legal process theories.
 Realism‟s core assumptions can be variously classified
 states are key actors in world politics;
 states can be treated as homogeneous units acting on the basis of self-interest;
 analysis can proceed on the basis of the assumption that states act as if they were rational;
and
 International anarchy – the absence of any legitimate authority in the international system –
means that conflict between self-interested states entails the danger of war and the
possibility of coercion.
 Institutionalism- institutions could enable states to achieve their own objectives more efficiently.
 Institutions would alter state strategies by changing the costs of alternatives;
institutionalization could thus promote cooperation.
 Institutions mattered because they could provide information, monitor compliance, increase
iterations, facilitate issue linkages, define cheating, and offer salient solutions.
 Constructivism- seeks to show that the preferences of individuals, and therefore state interests, can
be influenced by international law and institutions.

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 State Formation and the Self-Determination of Peoples
Legal and Political Issues of Statehood
 The 1933 Convention on the Rights and Duties of States (known as the Montevideo Convention), sets out
four simple criteria for statehood.
 Permanent population - no minimum number of inhabitants necessary to make a State.
 A defined territory- even though its borders are disputed like Israel.
 Government; the manner in which sovereignty is exercised in each state.
 Capacity- to enter into relations with the other states.
 Increasingly, States and international organizations like the European Union and the United Nations are
making express demands that must be met by new States before these States will be recognized. EG.
Promises by the new States to support human rights, prevent nuclear arms proliferation, etc.
 There has been some debate in the scholarship about the role that recognition of States plays in
deciding whether an emerging entity is a State. As mentioned before, the benefits of Statehood
only come with recognition by other States.
 In theory, however, the weight of legal authority rests with the so-called ―declaratory” view that a State
exists once it has met the four legal criteria, whether or not it has been recognized by any other State.
According to the Institute de Droit International: ―The existence of a new State with all the legal
consequences attaching to this existence is not affected by the refusal of recognition by one or more states.
 The other view is the ―constitutive” view, holding that other States ―constitute‖ or create a new State by
recognizing it. Although this theory gives proper deference to international politics, it does not provide a
clear point at which a State becomes a State and in fact may misrepresent the way that States make
recognition decisions.

The Right of Self-Determination

 This principle was articulated first as a right of colonized people to self-government, but it has since been
used to justify the creation of States in other ways, as by secession.
 The right of self-determination was affirmed as an international law when it was written into the Charter of
the United Nations in 1945.
 Nowhere does the Charter specifically call for freedom for colonized territories. Apart from the undefined
―right of self-determination,‖ the UN Charter in Article 73 laid out some specific duties of colonizing
countries, ―to promote to the utmost… the well-being of the inhabitants of these [colonial] territories, and,
to this end… to develop self-government, to take due account of the political aspirations of the peoples, and
to assist them in the progressive development of their free political institutions…‖ These are ideal goals for
political freedom, not specific requirements that can be measured.
 Most of the international HRs instruments that include the right of self-determination gloss over its various
contradictions and leave its definition vague.

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  Again, the right is not clearly defined in the ACHPR.
 Two very important General Assembly resolutions make reference to the right of peoples to self-
determination. The first, passed in 1960, is the Declaration on the Granting of Independence to Colonial
Countries and Peoples.
 The second resolution, passed in 1970, is the Declaration on Principles of International Law Concerning
Friendly Relations and Co-operation among States in Accordance with the Charter of the United Nations.
 This resolution seems to reinstate the tension between self-determination and territorial integrity. A State
that does not comply with the principle of equal rights and self-determination (presumably a State that
denies certain political rights to minorities) has forfeited its right to territorial integrity. The Canadian
Supreme Court over Quebec.
 Unlike the international instruments, Ethiopia‘s Constitution is quite clear about what the right of self-
determination means, who the ―people‖ are who can claim this right, and how this right can be lawfully
exercised art 39.
 The Constitution uses a mixture of subjective and objective criteria to define the beneficiaries.

State Territory and Borders

 Africa have been decided by the principle of uti possidetis, ita possidetis (or just uti possidetis for short), a
Latin phrase which means literally, ―[you may] keep what you had.‖
 By this is meant that former colonies, on gaining independence, will keep the borders
established previously by the colonizing power.
 The principle of uti possidetis seems to have been first invoked and applied in Spanish America, inasmuch
as this was the continent which first witnessed the phenomenon of decolonization involving the formation
of a number of sovereign States on territory formerly belonging to a single…State.
 (1) Identify the issue, (2) state the rule, (3) apply the rule to the facts, and (4) give a brief conclusion. This
is the so-called ―IRAC‖ method.
 Recognition of Governments
 As an expression of disapproval, other governments may refuse to recognize the governments, cut off
diplomatic contacts, suspend travel to that country, or cut off trade and foreign aid.
 The issue of recognition is separate from the issue of whether to continue diplomatic relations, travel, and
trade.
 The U.S. for some time applied the so-called ―Tobar Doctrine” which said that, in order to promote
democratic transfers of power, new governments formed by use of force or subversion of legitimate
democracies would not be recognized.
 Estrada Doctrine (Mexican foreign minister), there are situations when the international community must
determine the legitimacy of a new government.

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 CHAPTER THREE

 International Organizations and Other International Actors

 An international organization is an organization, typically established by treaty, whose members
are States or other international organizations.
 The prototypical international organization is the United Nations. The UN has both more power
and less power than the student might expect. Regional organizations OAS, AU,EU etc.
 International Civil Aviation Organization. WTO, IMF, WB, WHO & the International
Telecommunication Union.
 Characteristics of International Organizations
 Have attained a special status in international law that other organizations like NGOs do not have.
 Like States, international organizations can enter into treaties, enjoy certain privileges and
immunities, as for example those enjoyed by UN diplomats traveling abroad on UN business.
 States have privileges and immunities that are general whereas international organizations have
only such privileges and immunities as are necessary to carry out the organization‘s functions.
 An international organization cannot invoke ―sovereign immunity‖ – immunity from liability in
foreign courts in cases involving official acts – because an international organization is not a
sovereign. Also, only States can appear before the International Court of Justice in contentious
cases.

 The Structure of the United Nations

A. The General Assembly (GA) - is the Parliament of the UN, but it is a Parliament with little or no
legislative power. GA resolutions are like recommendations to Member States – the resolutions are not
binding.
B. The Security Council (SC) - compared to the GA, has more power, but it is exercised within a narrower
scope. In fact, the SC passes both non-binding resolutions and binding resolutions. The binding
resolutions may be passed only when the SC is taking action ―for the maintenance of international peace
and security.‖ (15 members – 5 permanent members and 10 rotating members with 2-year terms).
C. The Secretariat- is composed of all the administrative staff of the UN and headed by the Secretary-
General. The role of the Secretary-General as a spokesman.
D. The International Court of Justice- functions under its own statute which is ―an integral part‖ of the
Charter and is annexed to it, has fifteen judges all from different States.
 Two types of cases come before the Court –
 contentious cases between States and
 Requests for advisory opinions from organs of the UN or from specialized agencies.

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 E. ECOSOC- functions like a mini GA with a special focus on economic, social, and humanitarian issues.
Makes studies and reports and may bring matters to the attention of the GA.
F. The Trusteeship Council- was created to monitor those colonies placed under the administrative authority
of another State following World War II.
 The UN has many problems in practice – most significantly the problem of preventing aggression and war
by States – but the major structural problems are two. First, there is some confusion as to the respective
areas of authority of the SC and the GA. Second, there is some question as to whether the ICJ can review
the activities of the SC and GA and pass judgment on them.

 The African Union

 May 26, 2001, marked the Constitutive Act of the African Union entered into force.

The organs and institutions are:-

 the Assembly of the Union;
 the Executive Council;
 the Pan-African Parliament;
 the Court of Justice;
 the Commission;
 the Permanent Representatives Committee;
 the specialized technical committees;
 the Economic, Social and Cultural Council; and
 the financial institutions (African Central Bank, the African Monetary Fund, and the African Investment
Bank)
 Although the organs and institutions forming its structure are provided for by the Act and offer great potential
for the continent, their composition, powers, functions, organization, and rules of procedure have yet to be
specified.
 The current state of the African economy is poor.

 Other International Actors: NGOs, Corporations, and Individuals

 NGOs, corporations, sporting federations, organized religions, regional governments, and international
terrorists.
 These non-state actors do not have the status of legal persons at the international level, so they cannot
have rights and duties under international law. Their activities are governed by national laws.
 Three new areas of international law give greater standing to individuals in the international arena human
rights law, international humanitarian law (law of war), and international criminal law.

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 CHAPTER FOUR

INTERNATIONAL CUSTOMARY LAW

 Custom is losing its status as a strong source of authority in international law. At least it is agreed
now that treaties are a stronger source of international law than custom and take precedence over
custom.
 What is strange about this position, however, is that it is international custom that provides the
basis for all treaty law, not the other way around. The principle pacta sunt servanda – which a
State must abide by its treaty obligations, is an international custom.
 From the principle of sovereignty to the treatment of foreign emissaries, the international system
is founded on customs.
 English and American courts had long consulted treatises on international law as well as the
practices of states.

 Background Principles and the Hierarchy of Sources in International Law

 International law is made chiefly in one of two ways:
 through agreements between states ‗treaties‘ or
 Through practice by states that fulfills certain requirements ‗customary international
law.
 The ICJ statute contains a clear list of the sources of international law.
 international conventions, international custom, the general principles of law recognized by civilized
nations, judicial decisions and the teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
 In the principle of order of importance, conventions (treaties) will take precedence over custom, and
custom will take precedence over general principles of civilized nations.
 A treaty tends to be more specific and clearer than customs, and certainly treaties are a better
expression of the consent of States.
 Treaty provisions may be interpreted according to rules of international custom.
 In the Lotus principle States have residual sovereignty or power in the absence of international law.

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 Customary Law: State Practice and Opinio Juris
 It is hard to prove that a custom exists. So two elements must be proven State practice and opinio juris.
(Elements of custom).
 ―Practice” indicates the State‘s overt behavior whereas opinio juris (―subjective‖ element) means
the State‘s belief that the practice is required as a matter of international law.
 Opinio juris concerns statements of belief rather than actual beliefs. Treaties and declarations represent
opinio juris because they are statements about the legality of action, rather than examples of that action.
 Opinio Juris is like a State‘s official stamp that converts that State‘s casual practice into a binding rule. To
have custom, States must not only exhibit a certain practice; they must also believe that the practice is
legally required.
 Which States Are Bound by Custom? - If a custom is general, all States in the world are bound by it. If a
custom is regional or local, only States in that region or locality will be bound by it.
 States that say and do nothing during the time when a custom is developing will be bound by that custom.
The same applies to new States.
 The only way that a State can get out of a general custom is by objecting to that custom loudly and
continuously during the process of the formation of the custom. A State that does this may obtain
―persistent objector status.‖
 The State must object when the custom is in the process of forming & the objection must be clear and
―persistent.‖
 After a rule of custom has formed, any conduct contrary to the rule is a violation of international law.

 Treaties and General Assembly Resolutions as Evidence of Customs

 Customary law co-exists with treaty law.
 First, the treaty may restate an already existing international custom.
 Second, the treaty may crystallize an emerging international custom. That is, the treaty
may be the final recognition of a custom that was previously just in the development
stages.
 A treaty may be used as evidence of custom along with other things like domestic court decisions and
policy documents. The treaty may be the only evidence of the custom.
 GA resolutions represent the opinion of a majority of States in the world. GA resolutions can be used as
evidence of State practice or opinio juris for the purposes of establishing custom. However, unlike treaties,
General Assembly resolutions are not binding on States.
 GA resolutions have been useful for proving that certain human rights standards have become international
custom.

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 CHAPTER FIVE

INTERNATIONAL LAW OF TREATIES

 States may enter into contracts, commercial or otherwise, that are governed by the national laws of
one of the States involved. A treaty is an agreement governed by international law.
 Treaties are entered into by States, but international organizations have the capacity to enter into
treaties as well.
 Functions- Some treaties are like international ―legislation‖ – they are open for all States to join
and are intended to be universal and binding on all. Their purpose is to establish a set of universal
rules to govern State conduct.
 Other treaties are more like ―contracts.‖ These treaties are the means by which two or more States
transact business and serve as constitutions for international organizations.
 Laws- the customary law ―pacta sunt servanda” meaning that treaty promises must be kept.
 There is a ―treaty on treaties” or in other words a treaty that many States have joined that
provides rules for the interpretation and application of treaties. This is the 1969 Vienna Convention
on the Law of Treaties (VCLT) (applies to written treaties entered into between States.)
 Even though Domestic laws are important in domestic courts, not in international courts, treaties
are binding as law at two levels, the domestic level as well as the international level. In domestic
courts, domestic laws will color the interpretation and application of treaties. FDRE Cons‘n Art 9.

 Treaty Formation
 Negotiations over a potential treaty begin when representatives from the State parties meet.
 The State parties must express their consent to be bound by the treaty, may be expressed by
signature, exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession, or by any other means if so agreed.
 For multilateral treaties, it would be impractical to require all negotiating parties to consent
before the treaty entered into force. Therefore, multilateral treaties usually provide that the treaty
will enter into force upon the consent of a certain number of the parties.
 A party not present at the original negotiation may be allowed to join the treaty at a later time if
the treaty so provides. This is called ―accession.‖

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 Interpretation of Treaty Terms
 The ultimate goal of a court in interpreting treaty terms is to fulfill the intentions of the parties to
the treaty. A court is not there to make the deal fair when a treaty seams unfair.
There are two basic theories:-
 The objective approach- requires that we take the parties at their word and interpret
treaty terms according to their ordinary meaning and as an ordinary person would
understand them.
 The subjective approach- It is possible that the parties to the treaty had some special
understanding as to the meaning of terms that is not found in a dictionary. Thus, a court
should look at anything that might indicate what the parties were thinking their behavior,
letters, and the drafting history of the treaty.
 The approach of the VCLT –is a combination of the objective and subjective approaches- A
treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.
 The VCLT has rather specific rules in regard to the use of drafting history in treaty interpretation.
 Invalidity of Treaties and Treaty Termination
 A State cannot unilaterally terminate a treaty and simply pay damages for the unlawful breach.
The treaty will continue in force even after payment of damages by the breaching party, unless of
course the non-breaching party opts to terminate the treaty.
 In the absence of agreement among the parties as to termination, the default rule is that
termination is possible only in four situations:-
 material breach by the other party,
 impossibility of performance,
 fundamental change of circumstances such that it no longer makes sense to continue with
the treaty
 A new rule of jus cogens (pre-emptory norms) that emerges sometime after the treaty
is already in force and those conflicts with the treaty.
 Treaty Reservations
 It is a unilateral statement whereby a nation tries to exclude or modify the legal effect of a
provision of a treaty while still joining the treaty. A State may want to ratify a treaty, but it
disagrees with one provision in the treaty.
 Reservations must be distinguished from ―understandings‖ and ―declarations.‖ Unlike
reservations, understandings and declarations are interpretive statements that are not meant to
change the treaty terms but rather clarify what that party understands the treaty to mean.

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 CHAPTER SIX

STATE RESPONSIBILITY

 Meaning of Sate Responsibility

 Until recently, the theory of the law of state responsibility was not well developed. The position
has now changed, however it does not replace customary international law, with the adoption of
the Draft Articles on the Responsibility of States for Internationally Wrongful Acts ("Draft
Articles") by the International Law Commission (ILC) in August 2001.
 State responsibility is a fundamental principle of international law and it lies on the
understanding that states are sovereign and equal. It provides that whenever one state commits an
internationally unlawful act against another state, international responsibility is established
between the two.

 The nature of State Responsibility (characteristics or requirements)

 the existence of an international legal obligation in force as between two particular states;
 there has occurred an act or omission which violates that obligation and which is imputable to
the state responsible; and
 Loss or damage has resulted from the unlawful or omission.

 The Question of Wrongfulness

 The principle of objective responsibility („risk‟ theory) maintains that the liability of the state is
strict. Once an unlawful act has taken place, which has caused injury and which has been
committed by an agent of the state, that state will be responsible in international law to the state
suffering the damage irrespective of good or bad faith.
 The subjective responsibility concept (the „fault‟ theory) which emphasizes that an element of
international or negligent conduct on the part of the person concerned is necessary before his state
can be rendered liable for any injury caused.
 Imputability (mamekagne OR malakek)/Attribution- is the legal fiction which assimilates the
actions or omissions of state officials to the state itself and which renders the state liable for
damage resulting to the property or person of an alien.
 Ultra vires acts- The act of officials of a state may result in the responsibility of a state even
when the former have acted beyond their authority.

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  Although private individuals are not regarded as state officials so that the state is not liable for
their acts, the state may be responsible for failing to exercise the control necessary to prevent
such acts.
 State Control and Responsibility- if the person or group of persons is in fact acting on the
instructions of, or under the direction or control of that State in carrying out the conduct, the state
is liable.
 Where a state subsequently acknowledges and adopts conduct as its own, then it will be
considered as an act of state under international law entailing responsibility, even though such
conduct was not attributable to the state beforehand.

 Consequences of Breach and Reparation

 The breach of an international obligation entails two types of legal consequences.
 Firstly, it creates new obligations for the breaching state, principally, duties of
cessation and non-repetition and a duty to make full reparation.
 Second, create new rights for injured states, principally, the right to invoke
responsibility and a limited right to take countermeasures.
 If illegal actions are continuing, the state has a duty to cease. The state also has duties to make
reparation, which could involve restitution, compensation, or satisfaction.

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 CHAPTER SEVEN

WAR AND THE PROHIBITION ON THE THREAT OR USE OF FORCE

 History of use of force: from the „Just War‟ to the United Nations
 Christianization of the Roman Empire and the ensuring abandonment by Christians of pacifism (war is a mistake, any
disagreement must avoid wiz consensus) give rise to the doctrine of just war. In those days the doctrine was force could
be used provided it complied with the Divine Will.
 But with positive and the definitive establishment of the European balance of power system after the peace of
Westphalia, 1648, the concept of the just war disappeared from international law as such. State were sovereign and
equal, and therefore no one state could presume to judge whether another‘s cause was just or not.
 The First World War marked the end of the balance of power system and raised afresh the question of unjust war.
 The League system did not, it should be noted, prohibit war or the use of force, but it did set up a procedure designed to
restrict it to tolerable levels.

 The UN charter‘s Article 2 provision is regarded now as a principle of customary international law and as such is
binding upon all states in the world community. The reference to ‗force‘ rather than war is beneficial and thus covers
situations in which violence is employed which fall short of the technical requirements of the state of war.

 The Phrase ‗Against the territorial integrity or political independence of any state‘
 No state has the right to intervene, directly or indirectly, for any reason what so ever, in the internal or external affairs
of any other state. Consequently, armed intervention and all other forms of interference or attempted threats against the
personality of the state or against its political economic and cultural elements, are condemned.
Categories of Force
 Retorsion- be nidet memeles- is the adoption by one state of an unfriendly and harmful act, which is
nevertheless lawful, as a method of retaliation against the injurious legal activities of another state. Legitimate
method of showing displeasure.
 Severance of diplomatic relations and the expulsion or restrictive control of aliens, as well as various economic
and travel restrictions.
 Reprisals are acts which are in themselves illegal and have been adopted by one state in retaliation for the
commission of an earlier illegal act by another state.
 Self-defense - There is extensive controversy as to the precise extent of the right of self-defense in light of
Article 51. On the one hand, it is argued that article 51 in conjunction with article 2(4) now specifies the scope
and limitations of the doctrine of use of force. Self-defense can only be resorted to ‗if an armed attack occurs‘
and in no other circumstances.
 On the other hand, there are writers who maintain that the opening phrase in Article 51 specifying that
‗nothing in the present Charter shall impair the inherent right of…self –defense‘ means that there does exist in
customary international law a right of self-defense over and above the specific provisions of article 51, which
refer only to the situation where an armed attack has occurred.
 The concepts of necessity and proportionality are at the heart of self-defense in international law.

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 Necessity - the armed attack that has occurred or is reasonably believed to be imminent requires the response
that is proposed.
 Proportionality may also require consideration of the type of weaponry to be used, an investigation that
necessitates an analysis of the principles of international humanitarian law.
 Terrorism- is the systematic use of terror especially as a means of coercion. Most common definitions of
terrorism include only those acts which are intended to create fear (terror), are perpetrated for an ideological
goal (as opposed to a lone attack), and deliberately target or disregard the safety of non-combatants.
 Most government definitions outline the following key criteria: target, objective, motive,
perpetrator, and legitimacy or legality of the act.
 Collective Security- as an Approach to Peace", is seen as a compromise between the concept of world
government and a nation-state.
 First: almost every state, especially all major states, has to be in the collective security arrangement
and committed to it for it to work.
 Second: no one state can block the decision making process.
 Third: for sanctions to work, the international economy has to be sufficiently interdependent such
that sanctions harm the intended country enough, but do not harm the countries doing the
sanctioning.
 Fourth: for countries to trust collective security, they have to know it works well enough to
safeguard their security.
 The lines between what is considered "collective defense" and "collective security" have been blurred.
"Collective security" - avoid grouping powers into opposing camps, and refusing to draw dividing lines that
would leave anyone out. (UN Principle)
 Humanitarian Intervention- When and Where to Intervene?
 where the scale of death and suffering is greatest,
 where intervention is unlikely to create great-power conflicts, and
 Where a mission can be designed that promises many lives saved at low cost to intervening soldiers.
How to Intervene?
 Should it simply do enough to feed starving people, should it create safe havens for individuals or groups at
risk, should it impose a ceasefire line between warring parties—or might it even help one side to win a conflict?
It all depends.
Who Should Intervene?
 The United States and other western countries can do a great deal to help in this regard by providing modest
sums perhaps a couple hundred million dollars a year in all for improved training, equipment, and other basic
military needs.

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 CHPATER EIGHT

INTERNATIONAL DISPUTE RESOLUTION

 International disputes are solved in two general methods: in the first category lie the International
Court of Justice and Other International Tribunals and in the second category are Arbitration,
Negotiation, and Mediation-diplomatic means of dispute resolution mechanisms.

The International Court of Justice/ICJ/

 has a dual jurisdiction: it decides, in accordance with international law, disputes of a legal nature that
are submitted to it by States (jurisdiction in contentious cases) binding rulings it gives advisory
opinions on legal questions at the request of the organs of the United Nations or specialized agencies
authorized to make such a request (advisory jurisdiction).
 The jurisdiction of the Court in contentious proceedings is based on the consent of the States to which
it is open. The form in which this consent is expressed determines the manner in which a case may be
brought before the Court.
 Although without binding effect, the advisory opinions of the Court nevertheless carry great legal
weight and moral authority.

The ICJ and the Security Council

 In practice, the Court's powers have been limited by the unwillingness of the losing party to abide by
the Court's ruling, and by the Security Council's unwillingness to enforce consequences. However, in
theory, "so far as the parties to the case are concerned, a judgment of the Court is binding, final and
without appeal,"

Other International Tribunals

 International war crimes tribunals are courts of law established to try individuals accused of war
crimes and crimes against humanity. The war crimes tribunals of Nuremberg and Tokyo.
 They act as a deterrent to potential war criminals.
 They offer a rare chance for the world's leaders and citizens to scrutinize both the
deplorable decisions made by particular leaders, and the atrocities committed by the
soldiers and agents of those leaders.
 Give victims and their families an opportunity to regain a sense of power that may have
been lost resulting from a war crime.

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 For a country attempting to make a transition from a repressive regime to a democracy, war crimes
tribunals offer citizens and leaders the opportunity to put their faith in an equitable rule of law.

 criticism
 Men like Hitler and Pol Pot, the leaders of violent movements, are never judged by tribunals for what
they do. A war crimes tribunal that tries only middle ranking officers, soldiers, and politicians is not
as effective as one that tries the mastermind behind the crimes.
 They do not alleviate the underlying causes of the conflict.
 They are ineffective in transforming a fractured society into one of stability and peace (necessarily
demonize individuals and sometimes whole groups, further separating parties, instead of building
peace.)
 They offer only the victors justice. What was most obviously missing following World War II was
not Hitler at Nuremberg, but a trial for Americans, French, British, and Russian individuals who
committed acts that would have been considered war crimes had the Allies lost the war. (Hiroshima).

The Creation of an International Criminal Court

 Officially established on July 1, 2002, and is located in The Hague, The Netherlands. However, all of
the world's nations have not ratified the Rome Statute of the I.C.C (United States, Russia, and Japan)
 Only war crimes committed after the I.C.C.'s establishment can fall under its jurisdiction. Only those
nations that ratify the document will fall under its jurisdiction.
 The establishment of the Court is a significant step toward the creation of an international system of
war crimes justice.

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 CHAPTER NINE

NATIONAL COURTS AND INTERNATIONAL LAW ISSUES

 Monism - This theory characterizes international and municipal law as a single legal system with
municipal law subordinate to international law.
 In states adopting this theory, the local courts automatically accept jurisdiction to adjudicate on
lawsuits relying on international law principles.
 Dualism - This theory regards international and municipal law as separate systems so that the
municipal courts can only apply international law either when it has been incorporated into municipal
law or when the courts incorporate international law on their own motion.

 Customs and Treaties as Part of the Law of Ethiopia- Art 9(1) vs Art 13 (2) of FDRE Cons‟n.
Extradition Treaties/Agreements
 There are two types of extradition treaties: list and dual criminality treaties.
 List criminality treaty: - it is the most common and traditional one, which contains a list of
crimes for which a suspect will be extradited (surrendered).
 Dual criminality treaties: - used since the 1980s, generally allow for extradition of a criminal
suspect if the punishment is more than one year imprisonment in both countries.
 Many countries, such as Mexico, Canada and most European nations, will not allow extradition if the
death penalty may be imposed on the suspect unless they are assured that the death sentence will not
subsequently be passed or carried out.
 Some countries, such as France, Russian Federation, Germany, Austria, China and Japan, have laws
that forbid extraditing their respective citizens.
 The refusal of a country to extradite suspects or criminals to another may lead to international
relations being strained. Often, the country to which extradition is refused will accuse the other
country of refusing extradition.

Prepared By: Mebratu.G

Mekelle University.School of Law, Class of 2007-2011 E.C/2014-2019 G.C

Nehasie, 2010 E.C/ August, 2018 G.C

Addis-Abeba, Ethiopia

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