ADIGRAT UNIVERSITY

COLLEGE OF SCHOOL OF LAW

DEPARTMENT OF LAW

A SENIOR THESIS PROPOSAL SUBMITTED TO THE SCHOOL OF LAW OF ADIGRAT UNIVERSITY

IN PARTIAL FULFILMENT OF THE REQUIRMENT FOR THE BACHLOR OF LAWS(LLB)

TITLE: NON-DEROGABLE RIGHTS DURING STATE OF EXIGENCY IN ETHIOPIA: A CRITICAL

APPRAISAL FROM INTERNATIONAL HUMAN RIGTS STANDARDS

PREPARED BY: ID NO

1, TSEGAY ARAYA ....................................18628/12

2, BERIHU TADESSE................................. 17232/12

3, AYZENHAWER ARAYA ..........................315/12

4, TSEGAINESH AREGAWI.......................18625/12

ADVISOR :INSTRUCTOR SHISHAY ABRHA(LLB, LLM)

SUBMISSION DATE : 5/17/2025

Table of contents

ABBREVIATIONS…………….….…………………………………………………………….II

ACKNOWLEDGEMENT………….……………………………………….…........……………III

1. Background of the study...............................................................................................................1

2. Statement of the problem..............................................................................................................4

3. Objective of the study...................................................................................................................5

3.1 General objective.....................................................................................................................5

3.2. Specific objective...................................................................................................................5

4. Research question.........................................................................................................................6

4.1. General research question........................................................................................................6

4.2. Specific research question.......................................................................................................6

5. Significance of the study..............................................................................................................6

6. Scope of the study.........................................................................................................................7

7 General working conditions ..........................................................................................................7

8. Research Methodology.................................................................................................................8

8.1. Sources of data...........................................................................................................................8

9. Limitation of the study.................................................................................................................8

10. Organization of the study...........................................................................................................9

11. Bibliography.............................................................................................................................10

ABBREVIATIONS

- ACHPR African Charter on Human and people’s right

- ACHR American Convention on Human rights

- ECHR European convention on Human rights

- FDRE Federal Democratic Republic of Ethiopia

- HOF House of Federation

- HPR House of People Representatives

 - HRC Human rights Committee

- ICCPR International Convention on Civil and Political rights

- UDHR Universal Declaration of Human rights

3. Acknowledgment

FIRST AND FOREMOST , WE WOULD LIKE TO THANK ALMIGHTYB GOD FOR GIVING

US PERSEVERANCE AND PATIENCE TO COMPLETE OUR RESEARCH PROPOSAL.

WE WOULD LIKE TO EXPRESS OUR SINCERE GRATITUDE TO OUR ADVISOR SHISHAY

ABRHA (LL.B, LL.M) FOR HIM INVALUABLE GUIDANCE, SUPPORT, AND INSIGHTFUL

FEEDBACK THROUGHOUT THIS PROPOSAL PROCESS.

4 Abstract

This research is intended to focus on the FDRE constitution and its non derogable provision during

exigencies in line with international human right instruments. It will be argued that derogablity of

rights is a necessary condition for averting exigencies. In the following paragraphs, I will state the

principal legal questions. Then the objectives, significance and methodologies of the research will be

put forward. Finally, the theoretical and some normative framework of the research will briefly

provide.

Protecting non derogable rights is difficult for enforcement, in order to secure this
concept good constitutional formation is necessary. And the hand of the state to
derogate the rights should be constitutional based and in accordance to international
standards to which Ethiopia is party. Taking these requirements, the thesis deals with
the analysis of the principles and provisions of the FDRE constitution in line with
international instruments. In doing so, the thesis compares international human right
instruments and the FDRE constitution.
Based on the comparisons the researcher states the gaps in the FDRE constitution on
the non derogable rights and analyse the enforcement of essential elements of state of
emergency, the power of the state, the non derogable rights enshrined in the
constitution. Besides to this, the difficulties behind the enforcement of these rights are
scrutinized.
 CHAPTER ONE

1. BACKGROUND OF THE STUDY

The history of the world shows that every state, at one stage or another sustains peace time and
war time, albeit with varying nature, intensity and frequency.

The concept of emergency opposed to normalcy, is a situation outside an ordinary course of

events. It refers to a sudden, urgent and usually unforeseen event or situation that requires
immediate action, often without time for prior reflection and consideration. 1 In such situations,
the normal legal order may be insufficient to address the threat posed to the community.
Derogation from fundamental rights and freedoms enables the government to resort to measures
of an exceptional and temporary nature in order to protect the essential structure of that society.

In the state of emergency, derogation refers to a temporary suspension of human rights in order
to achieve a state of normalcy. Derogating measures are exceptional and temporary in nature.
The rationale for derogation of provisions is to strike a balance between the sovereign rights 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.

International human rights instruments provide allowances 2 to derogation of respect for the
majority of the rights contained in the instruments during declared states of emergency. In
practice, the actual qualifications of state of emergency declarations are defined by treaties,
general comments of the United Nations Human Rights Committee, judicial decisions, the work
of interested parties such as the International Law Association and the International Bar
Association, and domestic statutes.

1
International human rights instruments provide allowances to derogation of respect for the
majority of the rights contained in the instruments during declared states of emergency. In
practice, the actual qualifications of

2
States’ right to derogate is limited by the categorization of human rights into derogable and non-
derogable rights. This distinction is of great importance since it reduces the risk of arbitrary
denial of rights in times of emergency. During the period of the existence of a public emergency,
the state concerned may take measures derogating from its obligations to respect and ensure to
all individuals within its territory and subject to its jurisdiction the human rights and fundamental
freedoms it has internationally recognized. However, it may not derogate from rights that are, by
their own terms, non-derogable and not subject to suspension. Non-derogable rights are a sub-
category of internationally recognized human rights often referred to as physical integrity rights
entitlements that protect individuals from arbitrary physical harm and coercion by the state,
including the right to be free from torture, enforced disappearance, extrajudicial killing, and
imprisonment for political beliefs .

State of emergency is hence one of the decisive moments, which opens the door to possible
abuse of human rights. In recent years, many countries have declared a state of emergency in
response to civil wars, natural disasters, or other situations affecting the life of the nation.
According to the Special Rapporteur on Human Rights and States of Emergency, between
January 1985 and May 1995, approximately 90 states experienced either de facto or de jure
states of emergency. Several Western states have also declared states of emergency on various
grounds, underscoring the global and recurring nature of emergency governance.

Derogation from human rights refers to the temporary suspension or limitation of certain rights
by a state in times of public emergency that threaten the life of the nation. This concept is
expressly recognized in Article 4 of the International Covenant on Civil and Political Rights ,
Article 15 of the European Convention on Human Rights , and Article 27 of the American
Convention on Human Rights . These provisions allow state parties to take exceptional measures
derogating from some of their obligations under the respective instruments, provided such
measures are strictly necessary, lawful, and proportionate to the emergency, and do not affect
non-derogable rights.in situations that trigger the state's power to derogate from its human rights
obligations, the ICCPR and the ECHR require the existence of a threat to the life of the nation,
while the ACHR allows derogation in cases where there is a threat to the independence or
security of the state.
However, in practice many countries declared a state of emergency not to protect the nation or
safe guards’ human rights but to maintain their power, to silence oppositions and to abuse human
rights. The rights of the individuals and state sovereignty are the elements of the issue for
instance Egypt has declared a state of emergency since 1981 for about 22 years. In February
2003, the government further extended this continues emergency rule for another three years. In
2004, due to violence between Christian and Muslims in plateau state and the city of kanji, the
Nigerian government has declared a state of emergency. In Nigeria a state of emergency is
usually declared in times of great civil unrest. In recent years, it has specially been implemented
in the reaction to terrorist attacks on Nigeria's by the Islamic jihadist group Boko Haram. On 14
may 2013 Goodluck Jonathan declared a state of emergency for the entire northeastern states of
Borno, Yobe and Adamawa.

The central international human rights treaties imagine the regime of derogation allowing states
parties to temporarily adjust their obligations under the treaties in exceptional circumstances.
The legal questions that constitute the heart of the derogation regimes are first, whether a
situation constitutes a public emergency which threatens the life of the whole nation. Second,
whether the measures are strictly required by the exigencies of the situation. A third question or
requirement is that the state derogating must notify the treaty depositary.

According to Article 93(4) of FDRE constitution, once a state of emergency is declared, the
council of ministers can suspend political and democratic rights guaranteed in the Constitution
except the nomenclature of the (state(Article 1), prohibition against inhuman treatment (Article
18(1)), the prohibition of slavery (Article 18(2)), the right to equality (Article 25), and the right
to self-determination (Article 39(1) and 39(2)). This Constitution however does not recognize the
right to life, freedom of religious thought and conscience, the non-imprisonment for contractual
obligation, non-retroactivity of criminal law and recognition as a person before the law which are
considered as non-derogable rights under the international convention on civil and political rights
(ICCPR) that Ethiopia is the party. Despite this, the Constitution adds to the list a set of rights
that are not embodied in the international covenant on civil and political rights (ICCPR), like the
right to equality and self-determination which are political rights at expense of individual human
rights. this suggests that some of the non-derogable rights listed in the FDRE constitution are
primarily aimed at ensuring regime security rather than prioritizing human security.
The aim of the study is hence to analyze the concept of derogation of human rights and the
compatibility of the Ethiopian emergency law in light of the international human rights
standards.

2. STATEMENT OF PROBLEM

Human rights by their nature are inviolable, inalienable, and inherent to all human beings. It is
well established that all human rights are universal, indivisible, and interdependent. Accordingly,
the Ethiopian state is expected to afford equal respect and protection to all human rights, even
during times of emergency.

However, there exists a significant discrepancy between the non-derogable rights recognized
under the ICCPR and those enshrined in the Federal Democratic Republic of Ethiopia (FDRE)
Constitution. The FDRE Constitution omits several internationally protected non-derogable
rights, including the right to life and freedom of thought, conscience, and religion, while
simultaneously prioritizing certain political rights not included in international instruments.
These inconsistencies raise concerns regarding the adequacy of Ethiopia’s legal framework in
protecting fundamental rights during states of emergency.

Moreover, there is a lack of comprehensive analysis on whether Ethiopia’s emergency laws and
their implementation align with its international obligations. This gap in scholarly and practical
understanding calls into question the robustness of the existing legal and institutional safeguards
meant to prevent abuse of power during emergencies. The problem is further compounded by the
possibility that emergency laws may be used more as instruments of regime security than as
mechanisms to protect public safety and human dignity.

This research aims to bridge this knowledge gap by critically assessing the compatibility of
Ethiopia’s emergency laws and practices with international human rights standards, with
particular emphasis on the protection and enforcement of non-derogable rights

3. OBJECTIVES OF THE STUDY

3.1 GENERAL OBJECTIVE

To examine the legal and practical framework for the protection of non-derogable rights in
Ethiopia, with a focus on the role of the state, the House of Peoples' Representatives, and the
alignment of national laws with international human rights standards during states of emergency.

3.2 SPECIFIC OBJECTIVE

The following are the specific objectives of the study;

1. To evaluate Ethiopia's legal framework regarding states of emergency and its alignment with
international human rights standards.

2. To analyze the legal framework governing states of emergency and non-derogable rights in
Ethiopia.

3. To identify the non-derogable rights recognized under Ethiopian law and compare them with
international human rights instruments.

4. To evaluate the extent to which Ethiopia’s state of emergency practices align or conflict with
international human rights obligations.

5. To identify the legal and practical gaps in the protection of non-derogable rights during
emergencies in Ethiopia.

4. RESEARCH QUESTIONS

4.1. GENERAL QUESTIONS

To what extent are the FDRE Constitution’s provisions on non-derogable rights during states of
emergency compatible with international human rights standards, particularly in terms of
discrepancies in the list of protected rights and challenges in their enforcement within Ethiopia?

4.2. SPECIFIC QUESTIONS

The following are major preliminary questions to be addressed in the research:

1. How does Ethiopia’s legal framework on states of emergency align with international human
rights standards?

2. What are the laws and legal provisions governing states of emergency and non-derogable
rights in Ethiopia?

3. Which non-derogable rights are recognized under Ethiopian law, and how do they compare
with those enshrined in international human rights instruments?

4. To what extent do Ethiopia’s state of emergency practices conform to or conflict with its
international human rights obligations?

5. What legal and practical gaps exist in the protection of non-derogable rights during states of
emergency in Ethiopia?

5. SIGNIFICANCE OF THE STUDY

This paper will have an invincible contribution in assessing Ethiopia’s position towards
international laws and treatment of international treaties it has ratified in connection with state of
emergency.

It will also make its own contribution in investigating the failure of Ethiopian legal system in
accommodating international human right principles which need due emphasis in case of state of
emergency and reconciling its laws to be operated in accordance with those laws and further
strengthen the argument for the protection of human rights.

It will be significant to analysis the obligation of the state party for respecting non derogable
rights in Ethiopia.

It will give or add inspiration to respect rights which are non-derogable status in international
instruments, but not in the FDRE constitution.

6. SCOPE OF THE STUDY

Derogation of human rights is a wide concept encompassing wide range of areas and state
practices.

This study will specifically focus on the laws of the Ethiopian system in line with international
human right instruments with regard to derogation and non-derogable rights. It will assess the
compatibility of the constitution of Ethiopia with international standards concerning non-
derogable rights. the paper will also cover the actions of the government in order to restore peace
and security and the principles of derogation of human rights during a state of emergency in the
Federal Democratic Republic of Ethiopia. the thesis will deal with the comparison of the FDRE
constitution and international human rights instruments in the context of states of emergency,
derogation of human rights, and its general principles.

7. GENERAL WORKING DEFINITION

Exigency: Refers to an urgent or pressing situation that requires immediate action, often without
the usual procedural safeguards.

Declaration: Generally, refers to a formal statement or announcement made by a party, often

under oath or with legal significance.

Derogate: Refers to setting aside, modifying, or limiting a law, rule, or right, typically in
exceptional circumstances.

Non-Derogable: Refers to rights or laws that cannot be suspended, restricted, or overridden

under any circumstances, even in emergencies..

8. RESEARCH METHODOLOGY

This is doctrinal research which attempts to make a critical legal analysis of Ethiopia’s
normative and institutional frameworks regarding a state of emergency and derogation of human
rights . The domestic legal and institutional framework will be analyzed in comparison with
international standards and jurisprudence governing state of emergency and derogation of human
rights. The research will attempt to analyze Ethiopia’s recent state of emergency experience
against its international human rights obligations.
8.1. SOURCE OF DATA

The study will employ a qualitative method thorough analysis of relevant domestic laws,
international human rights instruments, domestic and international cases will be analyzed as well
as the doing research of both national and international will be applied. Besides secondary
sources will be collected from published materials such as books, journals, articles, reports,
research papers and internet.

9. LIMITATION OF THE STUDY

The Ethiopian legal system is undeveloped and lacks legal works on this topic. Hence, the work
will be tough due to lack of sources which has been done in this area. The researchers will face
lack of budget to complete the thesis. Time will be a limitation to conduct this research as a
result, the researchers will have no enough time, since, they are going to complete within one
month.

Due to the above-mentioned limitations: We, the researchers, acknowledge that the research has
its own limitations to include all relevant issues regarding the theme of the study. Despite the
limitations, we believe that the study will be crucial to solve some academic and practical
problems in the legal field, and we will attempt to make the research clear and reliable as much
as possible.

Given the defined scope and limitations of the study, it will not attempt a comprehensive
assessment of the practical impact of states of emergency on each specific substantive human
right in Ethiopia. During the course of the research, challenges may arise in accessing relevant
data, particularly for periods when the state of emergency was in effect. Moreover, the
anticipated scarcity of domestic literature and jurisprudence on the subject may require reliance
on foreign legal materials and case law.

10. ORGANIZATION OF STUDY

Chapter one highlights the basis and structure of the entire study. Chapter two presents a brief
historical evolution as well as conceptual framework of the system of derogation and non-
derogable human rights in a state of emergency and it focuses on the constitution of Ethiopia and
human rights international instruments with regard to derogation and non-derogable rights in
state of emergency. Chapter three asses the compatibility of non-derogable rights provided in
FDRE constitution with international standard. This chapter will analysis the constitution and
practice of Ethiopia. Chapter four is a conclusion of the overall study stating specific
recommendations.

CHAPTER TWO

THE CONCEPTUAL FRAMEWORKS OF STATE OF EMERGENCY AND

DEROGATION OF HUMAN RIGHTS
 2.1. INTRODUCTION

This chapter is dedicated to discussing how states of emergency have long been recognized as exceptional
legal mechanisms used by governments to respond to crises that threaten the stability, security, or very
existence of the state. Whether triggered by war, terrorism, natural disasters, or civil unrest, these periods
often require swift and decisive action—sometimes at the expense of ordinary legal procedures and
individual freedoms. Within this exceptional context arises the legal concept of derogation, whereby
certain human rights may be lawfully limited or suspended to address urgent national threats. However,
not all rights can be suspended during emergency situations. Non-derogable rights—such as the right to
life, freedom from slavery and torture, and legal protection—are guaranteed under national law as well as
under international law. They are preserved because they uphold human dignity and check abuse of state
power. In so doing, the chapter will be providing background and overview of key definitions,
components of the state of emergency, essential principle of state of emergency, non derogable rights and
obligation in international human rights law, special powers can be proclaimed in a state of emergency
and branch of the government empowered to declare a state of emergency.

2.2. HISTORICAL BACKGROUND

The Universal Declaration of Human Rights (UDHR) is the first international instrument to affirm the
inalienable, inviolable, and indivisible nature of human rights. Article 29(2) of the UDHR contains a
general limitation provision, which specifically states that human rights may be limited to secure due
recognition and respect for the rights and freedoms of others and to meet the just requirements of
morality, public order, and the general welfare in a democratic society. Other than this general limitation
provision, there is no specific derogation provision in the UDHR.

The International Covenant on Civil and Political Rights (ICCPR) became the first international human
rights treaty to incorporate a derogation clause, which is enshrined in Article 4. The clause was inspired
by a British draft that had been presented by the drafting committee in 1947. The drafters of the ICCPR,
guided by the lessons of a long and calamitous war, attempted to achieve a balance between the need for
derogation of certain human rights during situations of utmost emergencies and the protection of
individual rights. Thus, after prolonged negotiation, they included a derogation clause subject to strict
procedural and substantive guarantees designed to avoid abuse.

These derogation provisions are also found in the European Convention on Human Rights (ECHR) and
the American Convention on Human Rights (ACHR). The ICCPR and the ECHR are very close because
they were being prepared roughly simultaneously: the ECHR was adopted in 1950, while the drafting of
the ICCPR was still continuing. During the preparation of the ECHR derogation clause, a committee of
experts was established to examine whether it was needed in light of the draft Article 4 of the ICCPR.
The ACHR derogation provision was negotiated around 1969 and was comparatively less controversial.

Interestingly, the concept of emergency in the ACHR differs slightly from that in the ICCPR and ECHR
since, in the ACHR, derogation is referred to in case of war, public danger, or other emergencies
jeopardizing the independence or security of the state party.

2.3. DEFINITION OF STATE OF EMERGENCY

A state of emergency derives from a governmental declaration made in response to an extraordinary
situation posing a fundamental threat to the country. The declaration may suspend certain normal
functions of government, may alert citizens to alter their normal behavior, or may authorize government
agencies to implement emergency preparedness plans as well as to limit or suspend civil liberties and
human rights. The need to declare a state of emergency may arise from situations as diverse as an armed
action against the state by internal or external elements, a natural disaster, civil unrest, an epidemic, a
financial or economic crisis or a general strike. States of emergency are not uncommon occurrences,
particularly in dictatorial regimes where the state of emergency may endure as long as the regime lasts. In
some situations, martial law is also declared, allowing the military greater authority to act. Other terms for
referring to emergency situations are state of exception, state of alarm and state of siege. This may be
necessary for states to be able to react quickly and effectively to an imminent danger. While many legal
systems across the world include state of emergency provisions, the specific powers they grant vary
significantly.

The rational for derogation provisions are to strike a balance between the sovereign right of a
government to maintain peace and order during public emergencies, and the protection of rights of the
individuals from abuse by the state.

((( source: This DCAF Backgrounder was prepared by the Centre’s Security Sector Reform Working
Group, in conjunction with Hans Born, Ingrid Beutler, and Thorsten Wetzling. David Law and Jason
Powers.)))

State of emergency has a conceptual foundation not only in international human rights law but
also in political theory and philosophy. Clinton Rossiter argues that governments must temporarily be
altered to whatever degree is necessary to overcome the peril and restore normal
conditions in times of crisis. He added that the sole purpose of such alternations on the normal
legal system is for “the preservation of the independence of the state, the maintenance of the
existing constitutional order, and the defense of the political and social liberties of the people.
State of emergency shows an aspect of temporariness and exceptional nature whereas normalcy
signifies the general rule and ordinary course of things. The International Commission of Jurists (ICJ)
noted that the “state of emergency is the counterpart in international law of self-defense in penal law.

All the major international and regional human rights instruments with the notable exception of African
charter on human and people’s rights (ACHPR), recognize the right of states to suspend human rights
norma contained there in case of exigencies that threaten the life of the nation. Similar, these instruments
lay down conditions and requirements for a valid derogation as well as enumerate certain rights that may
not be suspended or derogated even during the gravest of emergencies.

These instruments, however, differ both in their use of terminology of the situations that justify
derogation and their listing of non derogable right. Article of the ICCPR refers to ‘‘public emergency
which threatens the life of nation’ article of 15 the European convention on human rights (ECHR) to ‘war
or public emergency threatening the life of the nation’’ while article of 27(1) the InterAmerican
convention on human rights (IACHR) to war or public danger or other emergency that threatens the
independence or security of a sale party the derogation clauses in the above instruments are essentially
equivalent in criteria theory and purpose.

Unlike the above three human rights instruments, the African Charter on Human and Peoples ’ Rights
(ACHPR) does not contain a derogation clause. However, it is full of limitation or “clawback” clauses,
which authorize states to restrict most of the rights in the Charter.
These clauses give states broad discretion, even under normal circumstances (i.e.in the absence of a state
of emergency), to limit the rights and freedoms enshrined in the Charter, as long as such limitations are
made in accordance with domestic laws.

((source ‘’Yehenew Tsegaye Walilegne" state of emergency and human rights under the 1995 Ethiopian
constitution ))

A state of emergency is classified in to dejure and defacto. Dejure state of emergency exists
when states comply with legal requirements for its declaration. If states exercise their emergency
power without compiling with preconditions prescribed in their constitutions and international
human right instrument, they are in a defacto state of emergency. A dejure state of emergency
becomes defacto when emergency "measures are extended beyond the formal termination of a
declared state of emergency. A state of emergency derives from a governmental declaration
made in response to an extraordinary situation posing a fundamental threat to the country. The
declaration may suspend certain normal function of government, May alert citizens to alert their
normal behavior, or may authorize government agencies to implement emergency preparedness
plans as well as to limit or suspend civil liabilities and human rights. The need to declare state of
emergency are not uncommon occurrences particularly in dictatorial regimes where the state of
emergency may endure as long as the regime lasts. In some situations, marital law is also
declared, allowing the military greater authority to act. Other terms for referring to emergency
situation are state of exception, state of alarm and state of siege.

2.4. ORIGIN AND EVOLUTION

As Sheeran correctly observed, it is crucial to accurately determine the state of emergency's origin in
history and its application in order to fully understand the concept. With regard to its historical origins,
most scholars agree that the state of emergency goes back to the Roman Empire, where the practice of
temporary dictators was used in order to provide ad hoc leadership in the case of national emergencies,
for example, defending against foreign invasion or quashing insurrection within.

Academics also argue that the modern legal regime of the state of emergency began during the French
Revolution, and then it became entrenched in the majority of national legal regimes throughout the mid-
twentieth century. The majority of European national constitutions, according to Scheppele's argument,
had entailed the concept of a state of emergency in their legal regimes during the 18th and 19th centuries.
In 1789, the French Constituent Assembly established the concept of a "state of siege" and provided that
"all the duties vested in the charge of the civilian power for the maintenance of order and interior policing
fall on the military commander, who exercises them under his sole responsibility."
Soon thereafter, Article 48 of the German Constitution vested extraordinary powers in the President "to
take the measures indispensable for the re-establishment of public order and safety, if the case so requires
by armed force and including the suspension of a specific and limited number of rights" in the event of
exceptional peril to the system. Similarly, according to Article I, Section 9 of the U.S. Constitution, the
privilege of the writ of habeas corpus can be suspended by Congress during periods of internal rebellion
or invasion by foreign powers endangering the public safety.

In the colonial period, according to Fabian Klose, major colonial powers, particularly France and Britain,
extensively used emergency powers in their colonies to suppress anti-colonial forces. The other pivotal
turning point in the modern use of emergency powers was the 9/11 terrorist strikes against America.
Gross reports that the 9/11 attacks and the resulting "war on terrorism" brought to the center legal issues
that had hitherto been kept on the periphery, such as how a constitutional regime would counter violent
threats. The 9/11 terrorist attacks revived long-standing controversies related to the striking of a balance
between state emergency powers and the protection of human rights.

A review of the Travaux Preparators’ of the ICCPR reveals that the inclusion of the derogation clause
under Article 4 was one of the most contentious areas between states during drafting. It was the United
Kingdom, as Hartman proposed, that first recommended including a derogation clause in 1947, but the
recommendation was initially rejected for a variety of reasons. The basic conflict between states was
whether a limitation clause or a derogation clause would be more preferable. The United Kingdom and
others were the view that emergency circumstances would never be within the reach of the limits set out
in the various articles of the Covenant, nor could they ever effectively be provided for within a general
limitations clause. In opposition, the United States advocated that no derogation clause should be inserted
at all.

Those in support of the introduction of a derogation clause argued that, in situations of emergency,
Covenant parties would never practically be in a position to completely fulfill their treaty commitments.
They therefore suggested introducing an "escape clause" with defined and pre-determined limits so that
there would be no room for arbitrary derogation from rights. Later, the French delegate put forward a
compromise draft of Article 4, including general limitations and oversight mechanisms for the use of
derogation. These were respect for derogable rights, obligatory notification, and a non-discrimination
requirement.

(((Kim L. Scheppele, Law in a Time of Emergency: States of Exception and the Temptations of 9/11, 6
U. PA. J.CONST. L. 1001 (2004).))

(((AGAMBEN, supra note 56, at 5))

((GERM. FED. CONST., (Weimar Constitution, 1919) pt. I & 3, as cited by Eric A. Posner & Adrian
Vermeule, Accommodating Emergencies, 56 STANFORD LAW REVIEW, at 60797, (2003)))

2.5. COMPONENTS OF STATE OF EMERGENCY

A legal framework consisting of the constitutional and legislative bases for the state of emergency, and an
operational framework involving the organizational structure and strategic plans for dealing with the state
of emergency. While separate, these components must be compatible; in
other words, the legal framework must take into account operational requirements, and the operational
requirements must respect the legal framework, including international law. Focusing on the legal
framework, this backgrounder will deal with democratic accountability, human rights and the rule of law
during states of emergency.

The implementation of emergency law invariably leads to restrictions on normal economic, civil or
political activity and rights in order to address the extraordinary circumstances that have given rise to the
emergency situation. Certain restrictions may be fully justified. At the same time, there is a danger that a
government will take advantage of a state of emergency to introduce unwarranted restrictions on human
rights and civil liberties, to neutralize political opponents, to postpone elections, or for other self-serving
purposes that would be more difficult to pursue under normal circumstances. In some countries, there has
been a tendency to maintain states of emergency for years or even decades, long after the original reason
for its proclamation has disappeared. The danger that a “constitutional dictatorship” can arise out of a
state of emergency should not be understated.

2.6. THE PRINCIPLE OF GOVERNING STATE OF EMERGENCY UNDER INTERNATIONAL

AND REGIONAL HUMAN RIGHTS TREATIES

A country's constitution or legislation typically outlines the conditions under which a state of emergency
may be declared, the procedures to be followed, and the limits on the powers granted or rights that may be
restricted. While national practices vary, several international norms have emerged to guide state behavior
during emergencies. According to the Geneva Centre for the Democratic Control of Armed Forces
(2005), international human rights instruments such as the European Convention on Human Rights
(ECHR) and the International Covenant on Civil and Political Rights (ICCPR) establish key principles
that must be observed during a state of emergency. These include:

TEMPORALITY: A state of emergency must be temporary and exceptional in nature.

EXCEPTIONAL THREAT: The crisis must pose a real, current, or imminent threat to the community
or state.

DECLARATION: The state of emergency must be officially and publicly declared. This ensures legal
clarity and prevents the state from informally restricting rights without lawful basis.

COMMUNICATION: The state must notify other states and relevant treaty-monitoring bodies. For
example, if a state derogates from its obligations under the ICCPR or ECHR, it must inform the UN
Secretary-General or the Council of Europe, respectively, providing details of the measures and
justification.

PROPORTIONALITY: Measures taken must be proportionate to the severity of the emergency. This
applies to their scope, content, and duration.

LEGALITY: Emergency measures must remain within the bounds of national and international law. A
state of emergency does not suspend the rule of law, nor does it permit disregard for legal principles.
INTANGIBILITY: Certain rights are non-derogable and must not be violated under any circumstances.

Derogation from certain human rights and temporary suspension of democratic processes are common
features of a state of emergency. However, international human rights law places clear substantive and
procedural limitations on such powers.

The African Charter on Human and Peoples' Rights (ACHPR) neither expressly permits nor prohibits
derogation. Nonetheless, the African Commission, through its jurisprudence, has interpreted this silence
as a prohibition. In Commission Nationale des Droits de l’Homme et des Libertés v. Chad, the
Commission held that, unlike other human rights instruments, the ACHPR does not allow for derogation
during emergencies. A similar conclusion was reached in Media Rights Agenda and Others v. Nigeria.
Despite this, scholars such as Hynes, Ouguergouz, and Sermet have criticized the absence of a derogation
clause in the ACHPR as a significant gap.

The major international requirements for derogation are found in Article 4 of the ICCPR, as clarified by
Human Rights Committee (HRC) General Comment No. 29. From these sources, five key requirements
can be identified and categorized as either substantive or procedural. While these principles recognize the
need for extraordinary state action during emergencies, they also aim to minimize abuse.

2.6.1 SUBSTANTIVE REQUIREMENTS

These requirements govern the material, temporal, and geographical scope of emergency measures.

2.6.1.1 STRICT NECESSITY

The principle of strict necessity requires that a grave, exceptional threat to the life of the nation must exist
before a state can derogate from its human rights obligations. According to the HRC, not every
disturbance or crisis qualifies. As Fitzpatrick notes, the threat must endanger essential aspects of
statehood or the survival of the population. Common grounds include war, insurrection, terrorism, natural
disasters, and severe public health or economic crises. Additionally, the state must show that regular laws
are insufficient to address the crisis.

The European Court in Ireland v. United Kingdom held that ordinary laws were inadequate to address the
IRA threat. Similarly, the European Commission in the Greek Case outlined three conditions for a valid
emergency: (1) the threat must be actual or imminent; (2) it must affect the whole nation; and (3) it must
endanger the continued functioning of the state. In Lawless v. Ireland, the Court emphasized that ordinary
legal mechanisms had failed to contain the emergency.

2.6.1.2 PROPORTIONALITY

Proportionality requires that emergency measures must correspond in severity and scope to the threat
posed. They must pursue a legitimate public interest and must not go beyond what is strictly necessary.
Less restrictive alternatives must be preferred where available. Proportionality also applies to duration
and geographical coverage.
The inclusion of effective safeguards within emergency decrees is encouraged to prevent misuse. In
Lawless, the European Court stressed the need for real and effective safeguards against abuse.

International human rights law emphasizes that domestic constitutions should clearly define the
conditions and limits of emergency powers. The Paris Minimum Standards and the Siracusa Principles
support this view, requiring that emergency measures be legally grounded, necessary, and proportionate
to the crisis.

2.6.1.3 NON-DEROGABLE RIGHTS

Certain rights are non-derogable under any circumstances. The ICCPR lists several such rights, including
the right to life (Art. 6), freedom from torture (Art. 7), freedom from slavery (Art. 8), and freedom of
conscience (Art. 18). The HRC has further suggested that rights such as fair trial and habeas corpus are
also non-derogable.

The Paris Minimum Standards and the Siracusa Principles propose a broader list of non-derogable rights,
including the right to remedy and political participation. The African Commission has affirmed that the
right to a fair trial remains non-derogable under all circumstances.

These rights are protected due to their fundamental and peremptory nature (jus cogens). As Jamie Oraa
and Fitzpatrick argue, their non-derogability ensures that core protections remain in place even during
extreme crises.

2.6.1.4 CONSISTENCY WITH OTHER INTERNATIONAL OBLIGATIONS

Derogation under one treaty must not violate obligations under others. The HRC stresses that measures
under the ICCPR must align with a state’s wider international commitments. For example, Ethiopia is a
party to both the ICCPR (which allows derogation) and the ACHPR (which does not). Therefore, Ethiopia
must evaluate its responsibilities under both.

Moreover, derogation must not breach international humanitarian law (IHL), such as the Geneva
Conventions. Since IHL is designed to apply during armed conflict—which often triggers emergencies—
its rules remain binding even in those circumstances.

2.6.1.5 NON-DISCRIMINATION

Non-discrimination is a cornerstone of international human rights law. Article 4(1) of the ICCPR, along
with Articles 2(1) and 26, prohibits discriminatory derogation based on race, color, sex, language,
religion, or social origin. Grossman notes that this principle has reached jus cogens status, meaning
violations could invalidate otherwise lawful derogation.

2.6.2 PROCEDURAL REQUIREMENTS

These relate to the legal processes for initiating, enforcing, and ending emergency measures.

2.6.2.1 OFFICIAL PROCLAMATION

According to Article 4(1) of the ICCPR, a state of emergency must be officially proclaimed. The HRC
views this as essential for ensuring legality and public awareness. A formal declaration prevents the
emergence of a de facto state of emergency, where rights are limited without proper legal basis.

2.6.2.2 INTERNATIONAL NOTIFICATION

States must inform other treaty parties and the relevant treaty bodies (e.g., the UN Secretary-General for
the ICCPR) of any derogation. This promotes transparency and international oversight.

According to the Siracusa Principles, a notification must include:

The specific rights derogated

Legal and constitutional basis for the emergency

Date and duration

Reasons for the emergency

Anticipated impact on human rights

The HRC also recommends that state reports under Article 40 include detailed information on emergency
law and practice.

2.7. SPECIAL POWERS CAN BE PROCLAIMED IN A STATE OF EMERGENCY

Special emergency powers are granted to the government by virtue of the constitution or statutory
laws. Examples of emergency measures or powers range widely, for example:

the restriction of press freedom and the prohibition of public meetings

domestic deployment of the armed forces
evacuation of people from their homes and places of work
searches of homes and other private places without a warrant; arrests without charges
confiscation of private property (with or without compensation) and/or its destruction
regulation of the operations of private enterprise; interference with financial transactions and
export regulations
special legislation to punish non-compliance with emergency regulations.
 In some countries (e.g., the UK), special judicial bodies may be set up during the emergency
situation, whereas in other countries (e.g., Germany), extraordinary judicial bodies are forbidden.
In a state of emergency, responsibility for government must remain with civilian authorities on
the national and local level. Security forces assist the civilian authorities in a subsidiary role.

2.8. MECHANISMS AND APPROACHES CAN HELP GUARD AGAINST THE ABUSE OF
EMERGENCY POWERS

2.8.1. THE ROLE OF PARLIAMENT

Most legal systems ensure that the executive does not have sole authority to declare a state of emergency
and provide for parliamentary ratification of the decision of the executive – often, with a qualified vote.
As a general rule, governments, checked by parliament, must provide a well-considered justification for
both their decision to declare a state of emergency and the specific measures to address the situation.
Most parliaments also have the power to review the state of emergency at regular intervals and to suspend
it as necessary. This parliamentary role is especially important in long-lasting states of exception, where
the principle of civilian supremacy over the security sector may be at risk. Whatever the emergency
situation, the post hoc accountability powers of parliament, i.e. the right to conduct inquiries and
investigations on the execution of emergency powers ought to be guaranteed by law. This is important for
both assessing government behavior and identifying lessons learned with a view to future emergencies.

2.8.2. THE ROLE OF THE JUDICIAL SYSTEM

The judicial system must continue to ensure the right to fair trial. It also must provide individuals with an
effective means of recourse in the event that government officials violate their human rights. In order to
guard against infringement of non derogable rights, the right to take proceedings before a court on
questions relating to the lawfulness of emergency measures must be safeguarded through independence of
the judiciary. The courts can play a major role in decisions concerning the legality of a declaration of a
state of emergency as well as in reviewing the legality of specific emergency measures.

2.8.3. THE ROLE OF CIVIL SOCIETY

An emergency situation exerts enormous pressure on state and society. To deal with it effectively,
governments need the cooperation of their citizens. Any abuse or unwarranted limitation of human rights
in such a situation will undermine that cooperation and make it more difficult to surmount the emergency
situation. A state has a vital interest in dealing with a state of emergency in an accountable and
responsible manner.

2.8.4. THE ROLE OF NEIGHBORING STATES AND THE INTERNATIONAL COMMUNITY

Emergency situations may also affect the relations of a state with its neighbors and have implications for
the international community. All states should have an interest in ensuring that the declaration and
implementation of states of emergency are subject to certain limitations and proceed in accordance with
international norms. The international community needs to be actively engaged in ensuring that
governments observe these norms. In particular, it must work with concerned governments to secure a
swift return to normalcy and the restoration of the constitutional order in which rights can again be fully
ensured.

2.9. BRANCH OF GOVERNMENT EMPOWERED TO DECLARE A STATE OF EMERGENCY

Most states have legal mechanisms governing the declaration of a state of emergency and the
implementation of derogations. As concerns the prerogative to declare a state of emergency, the three
most common approaches are the following:

The executive declares the state of emergency and is obliged to inform parliament within a
specified period of time (e.g. US)
The executive declares the state of emergency but must have this ratified by parliament before it
can proceed with emergency measures (e.g. Germany)
Parliament itself declares the state of emergency (e.g. Hungary)

Typically, a state of emergency empowers the executive to name coordinating officials to deal with the
emergency and to override normal administrative processes regarding the passage of administrative rules.

Related Issues

civil emergency planning: The development of strategic plans, procedures, and institutions to
respond effectively to civil crises such as natural disasters, pandemics, or internal unrest.
parliamentary oversight of the security sector: The role of the legislature in monitoring and
reviewing the actions, budgets, and policies of security forces (military, police, intelligence) to
ensure accountability, transparency, and adherence to democratic norms.
human rights and the security sector: Ensuring that security operations during emergencies are
carried out in full respect of human rights norms, including the protection of civilians and the
prohibition of excessive or arbitrary force.
cooperation, coordination and communication within the security sector: The need for
effective inter-agency collaboration and information-sharing between military, police,
intelligence, and emergency response bodies for coherent and lawful action during emergencies.

(((https://www.files.ethz.ch/isn/14131/backgrounder_02_states_emergency.pdf?
utm_source=chatgpt.com))))

CHAPTER THREE

The compatibility of The Ethiopian Laws with the International

Human right Instruments; Derogable and Non derogable Rights
3. 1. Declaration of state of emergency under the FDRE constitution( source,1 The review
power of the HOPR is in line with the Paris minimum standard principles which requires judicial or other
review mechanisms. Note that the constitution does not set a maximum period for the state of
emergency, it may therefore past indefinitely so long as it gets approved by the HOPR

2,Sileshi Zeyohannes, analysis of constitutionality on state of emergency.

3,The constitution of FDRE, federal Negarit Gazette, first year proclamation no. 1/1995, article, 93 A. A.
(1995). )

The Ethiopian constitution recognizes possibilities that may the suspension of protected rights.
Derogation clauses relate to provisions that permits the temporary suspension of the application
and enjoyment of rights in response to incidences of emergency that threatens the life of the
nation. Derogation do not, however, confer absolute discretion on the executive to act on its
whims; there are substantive as well as procedural requirements that govern such emergency
situations. There are, moreover, certain rights, which may not be suspended even in threatening
situations. These preconditions are designed as a protection against possible abuse of human
rights on the pretext of emergencies while at the same time authorizing states to secure, maintain
and ensure the substance of fundamental national and international interests. Art. 93 of the
constitution prescribes the requirements, both procedural and substantive. The only conditions
that may justify derogations are occurrence of an external invasion, breakdown of law and order
which cannot be controlled by the regular law enforcement agencies and personnel or the
occurrence of a natural disasters or an epidemic.

In Ethiopian legal system state of emergency is declared by both the council of ministers and the
parliament. But there are different legal group requirements to apply it. In the case of ministers
the FDRE constitution in its art. 93 (1) (a) grants the power to declare state of emergency at the
time of external invasion, a natural epidemic and break dawn of law and order which endangers
the constitutional order when the ordinary law is insufficient to control the action. When the state
of emergency is taken by the council of ministers in accordance with article 93 (1) shall be
submitted to the house of people representative within 48 hours when they are in the session. By
using its discretion power the HPR either approve or reject it, if the declaration is not accepted
by 2/3 of majority vote of the members it cancelled automatically. However if the HPR is not in
secession the decree will have to be approved within 15 days of its adoption. The period for the
state of emergency is up to six months, with the possibility of renewal every four months by the
HPR. The constitution provides for the establishment of state of emergency inquiry board, which
has the power, among other things to inspect and follow up all the measures taking during state
of emergency and ensure the prosecution of perpetrator of inhuman acts. This is highly
commendable as it provides for a sort of checking mechanisms against abuse, which will protect
human rights in times of emergency. ((This implies that the annulment has only prospective effect. This is
particularly worrisome in cases where the HOPR is not in session but annulled the declaration of emergency later, as damage
may already have been done within the 15 days, hence the procedure might leave victims without remedy. )

And also state of emergency can be declared by the parliament in this way of declaration the
house approved and enforce it. The rational of declaration of state of emergency by council of
ministers is because in Ethiopia legal system it is the enforcing organ that means can easily
understand the situation of the state. If the decree of council of ministers will not be approved by
the parliament, the consequence that taken within fifteen days is silent in the FDRE constitution.
As a result the victims of that act is in dark because it is not expressly provided in the
constitution. After approval of the emergency law is effective based on article 93 (3) of the
FDRE constitution, the house of people representative may by a two-thirds majority votes allow
the state of emergency proclamation to be renew every four months successively.

The extension period of the constitution is unlimited, this gap opens the citizens violates their
rights in the name of emergency. The question here is it is full discretion of the state party or
what are legal grounds to cease state of emergency?. Based on article 94 (4)(a)when a state of
emergency is declared, the council of ministers shall, in accordance with the regulations it issues,
have all necessary power to protect the country peace and sovereignty and to maintain public
security law and order. In this sub article the phrase necessary power is very open to abuse or
violation of human rights, the FDRE constitution not explained it. At the same article 94 (4)(b)
of the FDRE constitution states that the council of ministers shall have the power to suspend
such political and democratic rights contained in this constitution to the extent necessary to avert
to the conditions that required the declaration of a state of emergency. The FDRE constitution
art. 93 (4)(c) states the list of non-derogable rights in the exercise of its emergency powers the
council of ministers cannot, however, suspended or limit the rights provided for in articles 1, 18,
25, and sub article 1and 2 of article 39 of the constitution. As understand from the list of non-
derogable rights are very few that means when we compare with ICCPR it forgets a lot of non-
derogable rights. Actually it involves as non derogable rights which are not included in the
ICCPR like the right to equality.

Concerning its procedure, the state has a constitutional autonomy to determine the process to be
followed to declare state wide emergency due to its not addressed in the FDRE constitution.
However, when the decree is at the federal level the constitution sets a certain standards.
Accordingly, the power to declare state of emergency is given to the council of ministers
(hereinafter, COM). Also article 55 (8) reads "In conformity with article 93 of the constitution
the HPR shall declare a state of emergency and above all it shall consider and resolve on the
decree of a state of emergency declared by the executive. This dictates that, the constitution
adopts both the executive and parliamentary mode of declaring state of emergency. Its executive
model due to the power to decree the state of emergency is entrusted to COM as per article 93
(1) (a) of the constitution. On the other hand, it’s a parliamentary model, as pursuant to article 93
(2)and(3)of the constitution, the decree of COM should be approved by the HPR to have a valid
force of law, since the non-approval renewal of by the HPR, so, that the emergency decrees we
have a valid force at law. The house has a power either to approve or reject the decree submitted
to it. It is if approved by the parliament (HPR), by two third (2/3) majority, state of emergency
declared by the council of ministers can remain in effect. Also it is the power of the house either
to deny or allow renewal of the state of emergency proclamation at every four months after the
laps of six months period.

FDRE Constitution (1995), Articles 1, 18, 25, 39, 55, 93, 94.
International Covenant on Civil and Political Rights (ICCPR), Article 4.

3. 1. 1. The role of HPR related to state of emergency

1. Declare state of emergency art 50(8) or approve state of emergency declared by the council of
ministers art 93(3).

2. Decide whether on the renewal or discontinuance of state of emergency every four months
art93 (3).

3. Establish state of emergency inquiry board which performs various duties and responsibilities
during state of emergency art. 93 (5) (6).

3. 1. 2. Function and power of council of ministers during state of emergency

1. Decree state of emergency art. 93 (1).

2. Refrain from suspending or limiting rights provide in art. 1, 18. 25. 39 (1) (2).

3. Suspend political and democratic rights contained in the constitution to the extent necessary to
avert to conditions art. 93 (4b).

3. 2. Non-derogable provisions and rights under FDRE constitution ( The other provisions
which is non derogable is the federal and democratic structure of the state. See FDRE constitution art.
(93 (4))(b)(c). the constitution list of non-derogable rights in the ICCPR art. 4 the right to life and the
prohibition of retroactive application of criminal law are for instance missing in the constitutional list.
Article 4 of the ICCPR requires states to inform other member states when declaring emergencies. FDRE
constitution art. 93 Derogation are different from limitations in that they are often temporary and may
suspend a right wholly. Unlike derogation, limitations cannot negate the essential elements of a right.
Moreover, there is no need for emergencies to justify limitations of rights; but emergencies or crisis are
condition precedents for the legitimate derogation from suspension of rights.
2,Guyo huka, derogation of human rights in a state of emergency under Ethiopian constitution :a
comparison of the federal and state constitution in light of major human right instruments. P. 55-58,
(2013). )

In the exercise of state of emergency, there are non-derogable provisions. Accordingly, article 1
(nomenclature of the state, not right), article 18 (prohibition of inhuman treatment) article 25
(right to equality), and sub article 1and 2 of article 39 (right to self-determination including
secession) are not suspended during state of emergency as pursuant to article 93 (4c) of the
FDRE constitution. When we compare such lists with article 4 (2) of the ICCPR, mostof the non
derogable rights provided under the ICCPR are not included in the FDRE constitution. The list of
non-derogable rights recognized in the ICCPR and omitted in the FDRE constitution are; article
6 (The right to life), article 11 (prohibition of imprisonment for the inability to discharge
contractual obligations, article 15 (prohibition against ex-post facto criminal law ), article 16
(The right to recognised as a person before the law, and article 18 (freedom of thought
conscience and religion ). These rights are argued as derogable in FDRE constitution based on
the contrario reading of article 93 (4c). This implies that, the FDRE constitution has lesser
protection than that of ICCPR standard. Moreover, the right to life is the most vital and the basis
for other human rights is derogable under the constitution. This endangers /deteriorates the
protection of human rights in general.

However, on one hand, states of Ethiopia federation have provision in their own constitution
including the right to life as non derogable right. On the other hand, Somalia state constitution
does not include the prohibition of inhuman treatment and the right to equality, and also, Afar
constitution not includes the right to self-determination including secession as non derogable
right. FDRE constitution empowers different organs of government to address the operation of
state of emergency based on the principle of separation of power as it is proved to be an effective
mechanisms for controlling abuse of powers. The purpose of this principle is to prevent any
single branch of the government from becoming too powerful, to curve despotism and
arbitrariness and to promote liberty democracy, and good governance by creating a system of
check and balance. The regional states can declare a state wide state of emergency if natural
disasters or epidemic occurs.

3. 2. 1. Nomenclature of the state

Under the FDRE Constitution, the nomenclature of the state—which refers to Ethiopia
being described as the Federal Democratic Republic of Ethiopia—is a non-derogable
provision. This status is rooted in Article 1 of the Constitution, which declares: “This
Constitution establishes a Federal and Democratic State structure. Accordingly, the
Ethiopian state shall be known as the Federal Democratic Republic of Ethiopia.”

This provision is closely tied to the fundamental principles of the Constitution and cannot
be suspended or derogated from, even during a state of emergency. In particular, Article
93(4)(c) lists the rights and provisions that cannot be restricted during a state of
emergency.

Question will arise if at all this is a right? If the answer is yes, will that not defeat the right
to self-determination, the right to political participation and other rights that are
recognized under the constitution. A structure of a state is based on the will of the peoples,
which is expressed through participation.

Federal Democratic Republic of Ethiopia. (1995). Constitution of the Federal Democratic Republic of Ethiopia. Articles
1, 93(4)(c).

3. 2. 2. The right to be freedom from slavery and servitude; (article 4 of the ICCPR.

Article 18(4) of the constitution. )

International Covenant on Civil and Political Rights (ICCPR), Articles 4(2), 7, 8United Nations General
Assembly, 1966.

[Available at OHCHR:
https://www.ohchr.org/en/instruments-mechanisms/instruments/international-covenant-civil-and-
political-rights]
The right to freedom from slavery and servitude is non derogable right under the
international covenant (article 4 (2), and 8 (2) and 2 and the European convention (article
15 (2) and 4 (1)). However, only article 8 (1) of the international covenant specifies
expresses verb is that "slavery and the slave trade in all their forms shall be prohibited ".
According to article 27 (2)of the American convention, on the other hand, article 6 as a
whole is non derogable, which means that not only is the right not to be subjected to
slavery, involuntary servitude, salve trade and traffic in women non derogable but also the
right not to be required to perform forced and compulsory labor. like the article regulating
the right to life the articles defining the right not to be subjected to forced and compulsory
labour contain limitation provisions that exempt from the definition of forced or
compulsory labour" certain kinds of labour such as services exacted in time of emergency,
danger or calamity that threatens the well-being of the community. To the extent that the labour
required falls with in this category, if can of course, also be required in the public emergencies
(for the texts of the relevant provisions, see article 8 (3(c)) of the international covenant on civil
and political right, article 6 (3(c)) of the American convention and article 4 (3(c)) of the
European convention.

The FDRE constitution under article 18 provides for the prohibition of slavery or servitude
including forced or compulsory labour. Moreover, trafficking in human beings for whatever
purpose is prohibited. Unlike the ICCPR prohibition of trafficking is a non derogable right under
the constitution, with regard to forced labour, through it is listed under article 18, service exacted
during emergency or calamity threatening the life or well-being of the community, any economic
and social development activity voluntary performed by a community within its locality fall
under the exception of forced labour the ICCPR provides for the prohibition of forced labour
except for a certain practices.

Article 18 (1) of the FDRE constitution states about everyone has the right to protection against
cruel, inhuman or degrading treatment or punishment. The right to freedom from torture or other
forms of ill treatment is also non derogable in all three treaties (article 7 of ICCPR, article 5 (2)
of the American convention and article 3 of the European convention). This means that states
may at no time resort to torture or to cruel, inhuman or degrading treatment or punishment in
order, for instance to punish or to extract confession or information from suspected terrorists or
other offenders. The inter-American court of human rights has specified that, as in times of
peace, the state remains the guarantor of human rights including the rights of people deprived of
their liberty and is thus also responsible for the conditions in detention establishments. The use
of torture and of cruel, inhuman or degrading treatment or punishment is prohibited at all times,
including in times of war or any other public emergency threatening the life of the nation. The
prohibition of torture and other forms of ill treatment is thus also strictly prohibited in the fight
against terrorism and hard crime. Torture or other forms of ill treatment may not be used to
extract information or confession from suspects. Prolonged incommunicado detention amounts
to a form of ill treatment prohibited by international law. The FDRE constitution respect such
types of inhuman treatment with including the list of non-derogable rights on article 93 of the
constitution.

American Convention on Human Rights (ACHR), Articles 5(2), 6, and 27(2)

Organization of American States (OAS), 1969.

3. 2. 3. Right to equality ((1African Charter Art. 3, which provide the right against discrimination, by providing
a general equality requirement.

2, Human Rights Committee General Comment (1982) 8(16) Article 9 adopted at its 378th meeting sixteen sessions.

3,Article 18 (1) of the FDRE constitution. ))

All persons are equal before the law and are entitled without any discrimination to the equal
protection of the law. In this respect, the law shall guarantee to all persons equal and effective
protection without discrimination on grounds of race, nation, nationality or other social origin,
colour, sex, language, religion, political or other opinion, property, birth or other status. Article
25 of the constitution affirms equality of all persons before the law and equal protection of the
law without any discrimination based on race, religion political opinion or other status. Despite
the fact that the right to equality is not included as one of the non derogable rights under ICCPR,
the human rights committee has opinioned that there are elements or dimensions of the right to
non-discrimination that cannot be derogated from in any circumstances. As we know the
constitution of Ethiopia lacks many rights to recognize as non-derogable rights but unexpectedly
the constitution recognizes the right to equality as a non-derogable right. Making these protected
under the ICCPR derogable in times of emergency conflict with international standard. At the
international level, a treaty is binding on the state party to the treaty in accordance with the treaty
terms.

Under the constitution of Ethiopia, international law ratified by Ethiopia is considered to be part
of the law of the land. Ethiopia acceded ICCPR in 11 June 1993. Hence, it is considered to be
part of the land. The constitution makes no reference to the status of customary in international
law under domestic law of Ethiopia. Nevertheless, the main issue here is the non-conformity of
the constitutional provisions with the generally recognized non-derogable rights as are stipulated
in the ICCPR. As said earlier, the constitution of Ethiopia gives international treaties the status of
ordinary laws. The constitution is the supreme of the land: hence any law inconsistent with it is
not binding. Nevertheless, since the constitution states that the bill of rights will be interpreted in
a manner conforming to the principles of the UDHR, ICCPR and international instruments
adopted by Ethiopia, there may be possibility that these non derogable rights provided in the
constitution will be interpreted according to the international standard. Be it as if any, the
constitution as the supreme law of the land, will prevail over international treaties. The only way
to held Ethiopia accountable to international treaty is therefore, through the term of the treaty
that Ethiopia ratified to be bound.

3. 2. 4. Rights to self determination (Article 39 (5) of the constitution.

Article 39 (4) of the constitution.

Article 93 (4) of the constitution)).

The right to self-determination provided under article 39 of the constitution of Ethiopia, goes
further to allowing all nations, nationality and people in Ethiopia, the unconditional right to
secede from the nation. Although the right to self-determination is provided under the ICCPR
and other human rights instruments, the unconditional right to secede is not incorporated in the
conventions. On the basis of a thorough study of the practice of states, special rapporteur Gros
espiell has concluded that self-determination is a rule of jus cogens, as a peremptory norms of
international law that is binding on all members of the international community and from which
no suspension is allowed. The right to secede is recognized for nation, nationality and people
under the constitution. The constitution defines nation, nationality or people as a group of people
who have a share a large measures of common culture and similar customs, mutual intelligibility
of language, beliefs in common or related identities, a common psychological make up and who
inhabit an identified, predominately contiguous territory. Taking into account the heterogeneous
society of Ethiopia, this definition includes more than the states that make up the federal
government. The constitution, in addition under article 39 provides for the right of all nations
nationalities and peoples in Ethiopia the right to speak and develop its own language to express,
to develop and to promote its culture and to preserve its history. As provided in article 93 (4) c
self-determination is non derogable under the constitution of Ethiopia.

3.3 Rights which are non-derogable in international instruments but not

included in the FDRE constitution

The Ethiopian Constitution under Article 9 accepts all international agreements ratified as an
integral part of the law of the land. Hence, those non-derogable human rights under ICCPR are
supposed to be non-derogable under the Ethiopian Constitution as well. Hence, the Ethiopian
Constitution recognizes the following rights as non-derogable rights during a state of emergency:

3.3.1 The right to life (,The right to life is fundamental and non-derogable. The right to life is given particular
preeminence in international law because all other rights are rendered meaningless in its absence. The pre-eminence
nature of the right to life is recognised as a value which then infuses the entirety of human rights. See Building Human
Rights Into Practice A Training Manual on International Human Rights Law The Bingham Centre for the Rule of Law
London, UK, February 2012))

Article 6 (1) of the ICCPR... it states every human being has the inherent right to life. This right
shall be protected by law. No one shall be arbitrarily deprived of his right, but article 15 of the
FDRE constitution states that every person has the right to life. No person may be deprived of his
life except as a punishment for a serious criminal offence determined by law. As understand
from the provision the right to life is not absolute in the FDRE constitution, it implies that it may
be deprived based on situation. Furthermore when the FDRE constitution list out the non
derogable rights the right to life is not included. The direct reading of article 15 of the FDRE of
and the indirect or contrary reading of article 93 (4) (c) of the FDRE constitution the right to life
is not absolute that means it is derogable based on situation.

The right to life is the base or mother of other rights. So, we can argue that violation of the right
to life is as equal as derogating all human rights. Even if Ethiopian ratified ICCPR is not make
the right to life is non derogable becouse it stated on its constitution, the law of the land and the
criminal law of Ethiopia states its position not it to be non derogable

The fundamental right to life is non derogable under all three treaties, which means that it must
be protected by law and that no person may at any time be arbitrar.y killed. If is true that the
exact extent of the protection afforded by article 6 of the international covenant, article 4 of
American convention and article 2 of European convention varies according to the specific treaty
imitation on imposition of the death penalty, and as pointed out by the human rights committee,
such limitations are "independent on the issue of derogablity "of the three treaties, only the
European convention defines the specific situation in which "deprivation of life shall not be
regarded as inflicted in contravention of this article, namely, when it results from the use of force
which is no more than absolutely necessary;

1. in defence of any person from unlawful violence;

2. In order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

3. in action lawfully taken for the purpose of quelling a riot or insurrection

According to the European court of human rights the exceptions delineated in paragraph a
indicate that the provision extends to, but is not concerned exclusively with, international killing
paragraph a rather describes the situation where it is permitted to 'use force 'which may result as
an unintended out come in the deprivation of life. The term absolutely necessary indicates that
the force used must be strictly proportionate to the achievement of the aims set out in sub
paragraph 2 (a) (b) and (c) of article 2. The FDRE constitution in article 15 states, every person
has the right to life. No person may be deprived of his life except as punishment for a serious
criminal offence determined by law. This indicates that the right to life is not absolute in
Ethiopia and it is out of the list of non derogable rights.

3.3.2 The right to freedom of thought, conscience and religion;

Everybody's right to freedom of thought, conscience and religion, including the freedom to hold
beliefs is non derogable under art 18 of the international covenant on civil and political rights
read in conjunction with article 4 (2), while freedom of conscience and religion is non derogable
in the Americans by virtue of article 12 and 27 (2) of the American convention. In the FDRE
constitution the right to freedom of religion and thought and conscience are stated article 27 and
29 respectively, as result those rights are derogable, are not included in the list of non-derogable
rights in article 93 (4 (c)).

Ibid

3.3.3 Freedom from Imprisonment for Inability to Fulfill a Contractual

Obligation

FDRE Constitution:Article 17(2) provides the right against arbitrary arrest, but there is no
explicit clause protecting from imprisonment due to failure to fulfill a contractual obligation. In
practice, this may be derogable during emergencies.

ICCPR:Article 11 clearly states, “No one shall be imprisoned merely on the ground of inability
to fulfill a contractual obligation.” This right is non-derogable under international human rights
law.

3.3.4 Rights of the Child ( Ethiopia ratified the Convention on the Rights of the Child (CRC) on 14 May
1991. See United Nations Treaty Collections at http://treaties.un.org/Pages/ViewDetails.aspx?src

=TREATY&mtdsg_no=IV-11&chapter=4&lang=en (accessed on 13 September 2020). )

FDRE Constitution: Article 36 provides various rights to children, including protection from
exploitation, education, and identity. However, these are not explicitly listed as non-derogable in
Article 93(4)(c), meaning they can be suspended during a state of emergency.

ICCPR & CRC (Convention on the Rights of the Child), While the ICCPR itself is less specific,
the Convention on the Rights of the Child, which Ethiopia has ratified, provides that certain
rights of children (e.g., protection from abuse and exploitation) are non-derogable, especially
those related to life, torture, and legal personality.

3.3.5 Right to Recognition as a Person before the Law

FDRE Constitution:The right to recognition before the law is not explicitly protected or listed
among the non-derogable rights in Article 93.

ICCPR:Article 16 states:“Everyone shall have the right to recognition everywhere as a person

before the law.”

This right is generally understood to be non-derogable under customary international law and
Human Rights Committee interpretations.

3.3.6 Prohibition of Retroactive Criminal Laws

UN Human Rights Committee, General Comment No. 29, UN Doc. CCPR/C/21/Rev.1/Add.11 (2001).

https://undocs.org/CCPR/C/21/Rev.1/Add.11

Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No. 1/1995, Articles 9(4), 13(2), 22, and 93(4)
(c).

FDRE Constitution: Article 22 ensures protection from retroactive laws but is not included in the
non-derogable list under Article 93(4)(c), hence can be derogated during a state of emergency.

ICCPR: Article 15 protects against retroactive criminal laws and is explicitly non-derogable
under ICCPR Article 4(2).
Generally, the above analysis depicts that the government, when declaring state of emergency,
always disregards Article 9 and 13 of the Ethiopian Constitution, which oblige all international
agreements ratified by Ethiopia to be an integral part of the law of the land and the fundamental
rights to be interpreted in a manner conforming to the principles of UDHR and ICCPR. The
reliance of Ethiopia on its whims and domestic provisions to derogate human rights contravenes
international human rights norms. The government uses the state of emergency as a pretext to
silence dissent and evading legal responsibility for doing so. As a result, the government violates
even those fundamental rights under the guise of a state of emergency. Of course, the
government officially admitted its own wrongdoings (mainly its rampant human right abuses)
during the state of emergency against the people over the years and offered a public apology.
Human Rights Watch also rightly noted that the state of emergency directive in Ethiopia imposes
sweeping and vaguely worded restrictions on basic rights beyond what is permitted by
international law. Thus, the Ethiopian Constitution fails to comply with ICCPR’s norms when it
comes to the non-derogable human rights during a state of emergency (1,Prime Minister Abiy Ahimed,
Inaugural Address to the HoPR, (Apr. 2, 2018) available at https://www.opride.com/2018/04/03/english-partial-transcript-
of-ethiopian-prime-minister abiyahmeds-inaugural-address/ (accessed on May 13, 2020.)

2,Ethiopian Human Rights Project (EHRP), The State of Emergency (2016-2017): Its Cause and Impact, (2018); Human
Rights Council (HRCO), 142nd Special Report: Human Rights Violations committed during the State of Emergency in
Ethiopia, (2017), [hereinafter HRCO, Special Report 142],(available at
https://www.uwyo.edu/law/_files/docs/international%20human%20rights/reports/ethiopia-humanrights-report-2-
july18.pdf,) (accessed on June 12, 2020); Human Rights Watch, Legal Analysis of Ethiopia’s State of Emergency, (2016),
http://www.hrw.org/report/2016, (accessed Aug 30, 2020): Amnesty International, Commentary on Ethiopian State of
Emergency, (2018) available at https://www.amnesty.org/download/Documents/AFR2579822018ENGLISH.PDF (accessed
on March 3, 2020).

CHAPTER 4

The Law and practices in time of derogation of human rights under

the Ethiopian legal framework

4.1 Introduction (Proclamation No. 1/2016; Regulation 391/2016.Proclamation No.1/2016; Ratification

Proclamation No. 984/2016. 2,Proclamation No.1083/2018 3,United Nations Treaty Collection (2018).
http://www.treaties.un.org/pages/showDetails.aspx?objid=080000028
0004bf5 4, Proclamation No.1/2016, art. 14(5) ))

Although the ICCPR under Article 4(3) obliges state parties (including Ethiopia) to give
international notification and about its legality, the Ethiopian Constitution does not have any
provision that puts the responsibility to do so. When it comes to the Ethiopian practical
experience, the requirement of official proclamation and publicity was partially fulfilled. The
2016 State of Emergency Proclamation and Regulation had been published on the official
Federal Negarit Gazette24 but not the 2018 State of Emergency Proclamation.25 Nevertheless,
the approval Proclamation of the 2018 State of Emergency was published in the Federal Negarit
Gazette.26 However, all the publication on the official Negarit Gazette came days after the
emergency decree took effect. For example, the 2016 state of emergency proclamation was
published on the Negart Gazette on 25th October 2016 while its effective date started on 8th
October, 2016. Ethiopia also did not give a letter of notification to the UN when it derogated
even fundamental rights including freedom of speech, movement, the right to peaceful assembly
and demonstration during the last 2016 and 2018 state of emergencies.27Article 14(5) of State of
Emergency Proclamation No.1/2016 required the Prime Minister to declare the promulgation of
the State of Emergency Proclamations through mass media and it was practically done
accordingly.

The principle of legality requires that laws shall be available and accessible to the public. Apart
from reports in the media, the exact content of the State of Emergency Proclamation was not
immediately officially available to the public, in violation of this principle of legality. The failure
to make the text publicly available also fails to meet requirements of national law, specifically,
the requirement that all legal proclamations be published in Ethiopia’s Gazette.

The fact that the Constitution under Article 93(5) empowers the House of Peoples’
Representatives (Ethiopia’s lower House), while approving the declared state of emergency to
establish a State of Emergency Inquiry Board having seven persons from its members and legal
experts, there had practically been a ‘State of Emergency Command Post’ established. It gives
sweeping powers to the Command Post such as to arrest suspects without a court warrant;
determine the measures to be taken on perpetrators of prohibited acts; issue directives which
further restrict human rights and freedoms; and put arrested individuals into the socalled
‘rehabilitation centers’.29 Of course, the legal establishment of such a State of Emergency
Command Post is unconstitutional. The detailed establishment benchmarks on the neutrality and
integrity of the members of the Inquiry Board, and their work procedure is neither indicated in
the Constitution nor referred as a matter to be determined by subsidiary laws.The Constitution is
also silent on the proportion of the Inquiry Board members to be chosen from the members of the
House of Peoples’ Representatives and legal experts.

((1 See Proclamation No .1/2016, art 4; Proclamation 2/2018, art 6; Regulation No. 391/2016, art 3; Directive No.1 for the
Execution of the State of Emergency Issued by the State of Emergency Command Post, art 31; Proclamation 3/2020, a State of
Emergency Proclamation Enacted to Counter and Control the Spread of COVID-19 and Mitigate Its Impact 2(6).

2, Yibeltal Assefa, Upholding International Human Rights Obligations during a State of Emergency: An Appraisal of the
Ethiopian Experience (2019) Addis Ababa University, MA thesis unpublished
<http://213.55.95.56/bitstream/handle/123456789/16609/Yibeltal%20Assefa%20LLM%20Thesis.pdf?
sequence=1&isAllowed=y> accessed 20 October 2020.

The Constitution states that a state of emergency decreed by the Council of Ministers, if
approved by the two-thirds majority vote of the House of Peoples’ Representatives, can remain
in effect up to six months and there is a possibility that the state of emergency will be renewed
every four months successively. The wording of ‘renewing successively’ may give the Council
of ministers, the political body, to have unlimited power to extend the state of emergency
eventually paving the way for entrenched emergencies. This is because the Ethiopian
Constitution neither puts a maximum limit on the number of renewals of an emergency decree
nor mentions circumstances to extend emergency declarations.31 The extensions of state of
emergency, according to the Paris Standards, should be subjected to a priori legislative approval.
However, the 2016 state of emergency declared in Ethiopia – that had been in force for ten
months – was extended without prior legislative approval and did not meet majority support of
the parliament.

In terms of proportionality, both in 2016 and 2018, the government violated the requirement of
proportionality by declaring a nationwide state of emergency while its causes took place in some
parts of the country. The 2016 state of emergency proclamation provided contradictory
statements by stating, under its preamble provision, that “illegal activities [are] committed in
some parts of the country” but Thus, State of Emergency Provisions under the Ethiopian
Constitution fail to meet the requirements of legality, notification, necessity and proportionality
set out in the ICCPR and the country has failed to uphold some of the fundamental requirements
while exercising its emergency powers. Generally, unless the Ethiopian Constitution is
compatible with the international legal instruments when it comes to state of emergency, the
government may violate even those fundamental rights under the guise of state of emergency.
This is because there is a plethora of evidence that shows the direct correlation between state of
emergency and gross human rights violations. ( 1 According to Article 93(3) of the Ethiopia Constitution ‘a state
of emergency decreed by the Council of Ministers, if approved by the House of Peoples’ Representatives, can remain in effect up
to six months. The House of Peoples’ Representatives may, by a two-thirds majority vote, allow the state of emergency
proclamation to be renewed every four months successively’.

2, Ethiopian Human Rights Project (EHRP), The State of Emergency (2016-2017): Its Cause and Impact, (2018); Human Rights
Council (HRCO), 142nd Special Report: Human Rights Violations committed during the State of Emergency in Ethiopia, (2017),
[hereinafter HRCO, Special Report 142], (available at https://www.uwyo.edu/law/_files/docs/international%20human%20rights/
reports/ethiopia-humanrights-report-2- july18.pdf,) (accessed on June 12, 2020); Human Rights Watch, Legal Analysis of
Ethiopia’s State of Emergency, (2016), http://www.hrw.org/report/2016, (accessed July 30, 2020): Amnesty International,
Commentary on Ethiopian State of Emergency, (2018) available at
https://www.amnesty.org/download/Documents/AFR2579822018ENGLISH.PDF (accessed on May 3, 2020

4.2 legal and practical gaps exist in the protection of non-derogable

rights during states of emergency in Ethiopia

4.2.1 Legal Gaps

See FDRE Constitution, Proclamation No. 1/1995, Art. 93(4)(a); International Covenant on Civil and Political Rights
(ICCPR), 999 U.N.T.S. 171, Art. 4(2); African Charter on Human and Peoples’ Rights, OAU Doc. CAB/LEG/67/3 rev. 5.

The protection of non-derogable rights during states of emergency is a fundamental aspect of

constitutional and international human rights law. However, in the Ethiopian context, both legal
and practical shortcomings undermine the safeguarding of such rights during emergencies.
Despite the theoretical recognition of certain inalienable rights, the constitutional and
institutional frameworks in Ethiopia fall short of providing comprehensive and effective
protections. This section explores the legal and practical gaps that compromise the enforcement
of non-derogable rights under emergency conditions.

4.2.1.1 Lack of a Clear Definition of Non-Derogable Rights in the FDRE Constitution

One of the major legal shortcomings is the absence of a precise and exhaustive list of non-
derogable rights in the Federal Democratic Republic of Ethiopia (FDRE) Constitution. Article 93
authorizes the declaration of a state of emergency but is vague regarding the rights that remain
inviolable under such circumstances. While Article 93(4)(a) references Articles 1, 18, and 25 —
dealing respectively with the constitutional order, protection against inhuman treatment, and
equality before the law — it fails to clearly categorize them as non-derogable rights. This
ambiguity creates uncertainty and opens room for interpretive discrepancies, weakening the
normative protection of core human rights during times of crisis. Without a clear definition,
authorities may exploit this vagueness to curtail essential liberties under the guise of emergency
measures.

4.2.1.2 Inconsistency with International Standards

Ethiopia’s legal framework also demonstrates notable inconsistencies with international human
rights instruments such as the International Covenant on Civil and Political Rights (ICCPR) and
the African Charter on Human and Peoples’ Rights. Article 4 of the ICCPR explicitly lists non-
derogable rights, including the right to life, freedom from torture, inhuman or degrading
treatment, slavery, and the prohibition of retroactive criminal laws. However, the FDRE
Constitution does not mirror these protections in either detail or spirit. The lack of harmonization
with Ethiopia’s international obligations raises concerns about the credibility and effectiveness of
its human rights protections, especially during states of emergency. This disconnect weakens the
enforceability of these rights at the national level and may lead to systemic violations under
emergency laws that fall below international standards.
4.2.1.3 Overbroad Powers of the Executive

The Council of Ministers is granted wide discretion to declare and manage states of emergency (Art. 93(1)–(3)), with limited
checks by the judiciary or Parliament.

Another significant legal gap is the expansive power granted to the executive branch —
particularly the Council of Ministers — in declaring and managing states of emergency. Article
93 vests the executive with the authority to suspend laws and take measures deemed necessary,
with minimal checks from the legislative or judicial branches. This concentration of power lacks
sufficient safeguards to prevent abuse, especially in situations where emergency measures may
infringe upon rights considered non-derogable under international law. In the absence of strong
institutional oversight or detailed procedural safeguards, there is a high risk of misuse or
overreach, which may result in the erosion of fundamental rights.

4.2.1.4 Absence of Effective Remedies

Even when rights are violated during a state of emergency, the constitutional framework does not
guarantee effective remedies. There are no clear provisions outlining how individuals can seek
redress for violations of non-derogable rights during emergencies. The lack of access to timely
and independent judicial review mechanisms means that victims of rights abuses are often left
without recourse. This legal vacuum not only undermines the principle of accountability but also
contributes to a culture of impunity among state actors.

4.2.2 Practical Gaps

4.2.2.1 Weak Institutional Safeguards

Proclamation No. 1224/2020, Ethiopian Human Rights Commission Re-establishment Proclamation, Federal Negarit Gazeta.
Beyond the legal framework, Ethiopia suffers from weak institutional mechanisms that are ill-
equipped to protect non-derogable rights during emergencies. Institutions such as the House of
Federation and the Ethiopian Human Rights Commission often lack the independence, authority,
and capacity to challenge government actions or enforce constitutional protections effectively.
Additionally, security forces and law enforcement agencies frequently operate without adequate
human rights training or oversight. These deficiencies contribute to arbitrary arrests, torture, and
other abuses, particularly during the enforcement of emergency decrees. In practice, institutions
that should act as checks on executive power are often ineffective or complicit.

4.2.2.2 Judicial Ineffectiveness

EHRC & OHCHR Joint Investigative Report (2021): On human rights violations in Tigray and under emergency rule,
highlighting the limited accountability of security forces and weak judicial response.

The judiciary plays a pivotal role in safeguarding constitutional rights, especially during times of
crisis. However, in Ethiopia, courts often demonstrate a lack of independence or an
unwillingness to assert their constitutional mandate against the executive. Judicial deference to
emergency proclamations, coupled with political interference, severely limits the role of the
courts in upholding non-derogable rights. There is a notable absence of case law or precedent in
which courts have invalidated executive actions that violate fundamental rights during a state of
emergency. This judicial passivity not only compromises the rule of law but also weakens public
confidence in the justice system as a protector of individual rights.

precedent for courts nullifying government actions that infringe on non-derogable rights during
emergencies.

4.2.2.3 Limited Public Awareness

Citizens and civil society have limited awareness about which rights are non-derogable and how
to claim them.This allows government authorities to violate rights without strong public
resistance or legal challenges.

4.2.2.4 Use of Vague or Broad Emergency Laws

Laws passed during emergencies often contain vague language, giving security forces wide
latitude to restrict freedoms, sometimes including those considered non-derogable.

4.3 laws and legal provisions governing states of emergency and

non-derogable rights in Ethiopia

In Ethiopia, states of emergency and non-derogable rights are primarily governed by the FDRE
Constitution and supplemented by international human rights treaties that Ethiopia has ratified.
Below is an outline of the relevant laws and legal provisions:

4.3.1 Domestic Legal Framework

4.3.1.1 The FDRE Constitution (1995)

A. Article 93: State of Emergency

This is the principal constitutional provision governing the declaration and conduct of states of
emergency.

Article 93(1): Allows the Council of Ministers to declare a state of emergency in response to:

External invasion Breakdown of law and order which endangers the constitutional orderNatural
disaster or epidemic Article 93(2): Requires the House of Peoples’ Representatives (HoPR) to
approve the emergency within 48 hours if in session, or within 15 days if not in session.

Article 93(4)(a): Lists non-derogable rights even during a state of emergency: Article 1: The
Nomenclature of the State (“Federal Democratic Republic of Ethiopia”)Article 18: Prohibition
against inhuman treatment (torture or cruel, inhuman or degrading treatment or
punishment)Article 25: Right to equality before the law and equal protectionArticle 93(4)(b): All
emergency measures must comply with principles of proportionality and necessity.

B. Article 13(2): Interpretation of RightsRequires that the rights in Chapter Three of the
Constitution (Human Rights) be interpreted in conformity with international human rights
instruments adopted by Ethiopia.

FDRE Constitution, Proclamation No. 1/1995, Art. 13(2).

4.3.1.2 Subordinate Emergency Proclamations

State of Emergency Proclamation No. 1/2016, Federal Negarit Gazeta, Extraordinary Issue No. 89, 15 October 2016.

During each declared emergency, the Ethiopian government issues emergency proclamations and
directives (e.g., Proclamation No. 1/2016 for the 2016 state of emergency). These:

Define the scope and restrictions.Often include curfews, restrictions on movement, arrests
without warrants, etc.Are often criticized for failing to explicitly protect non-derogable rights.

4.3.2 International Legal Framework

1. International Covenant on Civil and Political Rights (ICCPR)

Ethiopia ratified the ICCPR in 1993.Article 4(2) lists non-derogable rights during
emergencies:Right to life (Article 6)Freedom from torture (Article 7)Freedom from slavery
(Article 8(1) and (2))Right to recognition as a person before the law (Article 16)Freedom of
thought, conscience, and religion (Article 18)
International Covenant on Civil and Political Rights, adopted 16 December 1966, entered into force 23 March 1976, 999
U.N.T.S. 171, Art. 4(2). Ethiopia ratified on 11 June 1993

2. African Charter on Human and Peoples’ Rights

Ethiopia ratified the Charter in 1981.Unlike the ICCPR, the Charter does not provide for
derogation of any rights, even in emergency situations.

African Charter on Human and Peoples’ Rights, adopted 27 June 1981, entered into force 21 October 1986, OAU Doc.
CAB/LEG/67/3 rev. 5, ratified by Ethiopia on 15 June 1998.

Chapter five

Conclusion and Recommendation

5.1 conclusion

The Ethiopian Constitution accepts all international agreements ratified as an integral part of the
law of the land but the Constitution does not incorporate the most generally recognized non-
derogable rights as non-derogable rights. The FDRE constitution recognizes five rights as a non
derogable rights during state of emergency. These are the nomenclature of the state, Equality,
freedom from slavery, self-determination and the right not to be subjected to inhuman and
degrading treatment. The constitution does not recognize the right to life, prohibition of torture,
freedom of religion, thought and conscience, the non-imprisonment for contractual obligation,
non-retroactive of criminal law and recognition as person before the law as a non derogable
rights. Despite this, the constitution adds to the list a set of rights that are not embodied in the
ICCPR, the right to equality, and prohibition of trafficking in person. 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.
There are derogation clauses in, inter alia. Article 15 of ECHR, article 27 of ACHR and article
31 of the European social charter. Some human rights instruments, such as the convention on, the
ICESCR and the African charter o human and people's rights do not contemplate any derogation
clauses. The rational for derogation provisions is to strike a balance between the sovereign right
of a government to maintaining peace and order during public emergencies and the protection of
the rights of individual from abuse of the state. Thus, the state is allowed to suspend the exercise
of some rights when necessary to deal with an emergency situation (e. g derogation of the right
to peaceful assembly), provided if complies with safeguards against any abuse of this derogation
provisions.

5.2 Recommendation

We the researcher recommends on the following areas of the FDRE constitution ;

The FDRE constitution should be add other related non derogable provisions in order to enforce
the given non derogable constitutional rights. For example, the right to justice is not included in
the list of non derogable rights, as a result, the question rise that even if the non derogable rights
are given without enforcing organ and area (offices) the guarantee of these non derogable rights
is meaningless.

The constitution is not provided the consequence of the action of the council of minister if the
declaration of the emergency is not approved or accepted by the parliament, in this case the
position of the government should be clear for taking some measures of the action. In practice
state of emergency of Ethiopia seems like some of state of emergency is missed or not fulfilled.
For instance, there was a violation in Oromia and Amhara regions but the emergency declared
through the entire of the state. So, serious and imminent of the life of the nation not fulfilled to
other regions of the state and at the same time the principle of proportionality that means
geographical and intensity not take in to consideration because the application of the emergency
is through the entire of the state. The state party should apply the emergency rule in the proper
areas of the action of dangers.
 When we see the interpretation of article 13 (2) of the FDRE constitution is argumentative.
Some people's argue that the application of art. 13(2) limited to provisions of chapter three (13-
44) of the constitution and not extended to article 93 (4) (c) or other chapters. Secondly, what the
constitution clearly provides is not subject to interpretation. On the other hand, non derogable
provisions of article 93 (4 (c)) should be read with article 13 (2) of FDRE constitution in case of
inconsistency or gap exist, which mandates to international human right instruments adopted by
Ethiopia including ICCPR. Hence, those non derogable rights in the ICCPR should be
incorporated in to FDRE constitution though interpretation. We stand to support the second
argument that means the FDRE constitution should be interpret in line with international human
right instruments especially on this specific issue of non derogable rights the constitution should
be interpret in line with ICCPR. Because the FDRE constitution enshrined only few rights other
very essential non derogable rights are missed even the list non derogable rights are not
applicable without the support of other rights.

Finally, We would like to appreciate to the FDRE constitution for the enshrined of group rights
as non derogable, which are derogable in the international instruments, even the ICCPR, its non
derogable human rights all are individual rights.