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© JournalsBank.com (2014) ISSN 2220-9425
Incorporation of Human Rights into Legal Frameworks
of the three Successive Regimes of Ethiopia and their
Treatment: A Comparative Analysis
Endalcachew Bayeh*
*[Corresponding Author], [Ambo University, Department of Political Science and International Relations, Ambo, Ethiopia],
[[email protected]], [+251 9 21 59 71 52]
European Journal of Humanities and Social Sciences Vol. 32, No.1, 2014
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Incorporation of Human Rights into Legal Frameworks of the
three Successive Regimes of Ethiopia and their Treatment: A
Comparative Analysis
Endalcachew Bayeh
Abstract
This article assesses the incorporation of human rights under the legal frameworks of the three successive
regimes of Ethiopia, namely the Derg, Imperial and FDRE governments. Besides, it looks into the
implementation of those introduced rights. Accordingly, based on the data analyzed, the findings of the
study show that human rights have been incorporated under the three successive regimes’ constitutional
and other legal frameworks with a varying degree. It also identified that there have been significant
differences in terms of due recognition given to human rights. The current regime is by far better in
introducing as well as giving high attention to human rights. Nonetheless, violation of human rights is
what the three regimes have in common, albeit the degree differs.
Keywords: Human rights, incorporation of human rights, violations of human rights, legal frameworks
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1. Introduction
Human rights are entitlements given to everyone by
the mere fact of being a human being. Human rights
define the power of the government. It also obliges
the government to take positive step which creates a
fertile environment for all people to enjoy such
human rights (Nowak, 2005:1). As human rights are
universal by nature, they need to be applied fully at
all the time across all parts of the world. Putting it
differently, every government is duty bound to
respect, protect and fulfill human rights (ibid). More
importantly, each government has to incorporate
international human rights into its domestic legal
frameworks as they are implemented domestically at
state level (Lord and Stein, 2008: 452). Thus, it is
envisaged that, as one member of the international
community, Ethiopia would play its part in this
regard. The existing literature focuses on human
rights in Ethiopia with separate looking of the
regimes. The prevailing literature on the subject
does not make sufficient comparison of human
rights‟ incorporation as well as implementations
across the three successive regimes. Thus, this study
deals with the incorporation of human rights in to
the three successive regimes‟ constitutional and
legal frameworks, thereby contributing to the
available literature on the matter under question.
Moreover, the study examines changes and
continuities on the status of human rights across the
three successive regimes.
2. Human Rights during the Imperial
Regime
In the Ethiopia‟s pre-constitutional period the
concept of human rights was not developed and that
the practice of human rights was not one that is
emanated from human nature (Tsegaye, 2009:296).
In the period before the 1931 constitution peoples
were considered as a mere subject to the monarchs
and citizens were not assumed to have rights by the
mere fact of their humanity rather their privileges
and benefits emanated from the will of the emperors
(Ibid:296-297). Nonetheless, this trend continued to
prevail in the period of the written constitution since
the 1931.
2.1. The 1931 Constitution
The 1931 constitution which is considered as the
grant by the emperor and designed to strengthen the
absolute power of the same has no significant
relevance to human rights (Tsegaye, 2009:297;
Beken, 2007:13; Adem, 2011:41; Fasil, 1997:21).
The constitution lists very few rights of the subjects
which are recognized by the emperor, such as the
right not to be arrested, sentenced, deprived of their
property, and the right to free movement and
secrecy of
correspondence. These rights are too restrictive and
full of exceptions.i If one strictly looks into the
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constitution, it is only 7 articles which deal with
rights of the people. Hence, the qualifications as
well as number of human rights incorporated into
this constitution underscore the idea that
constitution has no significant relevance to the rights
of citizens. Even it was due to the influence of
international community that these few rights were
included in the constitution (Alemayehu, 2010: 40;
Babile, 1997:5). Though certain rights had been
recognized in the 1931 constitution, they were
hardly implemented due to lack of adequate
legislations to implement them, prerogative and
discretionary power given to the Emperor, and lack
of strong and independent institutions (Calpham and
Paul, 1967:340-341).
The emperor adopted Universal Declaration of
Human Rights (UDHR), which is a very important
declaration that constitutes the International Bill of
Rights, while the country was internally not in order
(Alemayehu, 2010: 41). It was simply to bandwagon
with the civilized nations and to build his image and
reputation. This and other pressures for introduction
of democratic concepts compelled the monarch to
revise the constitution.
2.2. The 1955 Revised Constitution
Having the reason stated above the 1931
constitution was revised in 1955. Chapter three of
this revised constitution from article 37-65 deals
with right and duties of the people. Accordingly, the
constitution contained 27 articles about human
rights which were adopted from the developed
European countries and also the American Bill of
Rights (Spencer, 1993: 340; Raphaeli, 1967: 427).
Hence, there was incorporation of a number of
human rights in the constitution, including the right
to assembly, association, election, expression, etc, as
compared to the 1931constitution. Nonetheless,
those rights are also constrained by the claw back
clauses marked by the phrase such as “in accordance
with the law”, or “as shall be determined by law”
(Tsegaye, 2009:298; Adem, 2011:42; Lewis,
1956:195).ii Moreover, Penal Code is also
introduced in 1957 to give reality and depth to the
principles of human rights.iii
It is safe to say that the
revision of the constitution as well as the
introduction of Penal Code show the concern of
human rights problem of the time. Nevertheless,
imperial rule under the revised constitution and
other legal frameworks was also characterized by
widespread human rights abuses despite the fact that
there was incorporation of considerable number of
rights. It is due to this fact that dissatisfied peoples
began to show their grievances through uprisings.
To calm down uprisings brought against the
monarch, the monarch come up with a Draft
Constitution in 1973 having incorporation of an
enormous list of human rights. The 1973 Draft
Constitution under Chapter Two deals with Rights,
Duties, and Responsibility of citizens. Accordingly,
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it includes rights such as equality before the law,
freedom of expression, demonstration, movement
and religion, non extradition, presumption of
innocence, to elect and to be elected, right against
double jeopardy etc).iv
When one looks into human
rights provisions of this draft constitution, he/she
understands the wide coverage given to rights of the
people. Even it exceeds the 1995 FDRE
constitution‟s rights provisions. More importantly,
this constitution provides provisions for the
establishment of Ombudsman to appeal into in case
of violation of human rights.v Though fascinating, it
seems ambitious as the state was not domestically in
order and never fit those enlightened concepts since
there was no parallel development of institutional
machineries. Consequently, the changes took place
were too little too late, thus, the regime demised and
the constitution easily aborted.
3. Human Rights during the Derg Regime
After the fall of the imperial regime, the Provisional
Military Administrative Council (PMAC) having
socialist ideology seriously depreciated human
rights of the citizens such as freedom of expression,
free elections and freedom of religion (Tsegaye,
2009:298; Fasil, 1997: 28). Later, after 13 years of
constitutional lacuna the regime came up with the
third written constitution which is the 1987
constitution.
3.1. The 1987 Constitution
The 1987 PDRE constitution which opened a chance
for grass-root level discussions on the provisions of
the draft constitution shows the weight given to
human rights in the text of constitution (Fasil,
1997:30). This has never been practiced in
constitutional history of Ethiopia. The preamble of
the constitution confirms sovereignty of the people,
equality of nationalities, respection of basic rights
and freedoms.vi
This constitution under Chapter
Seven deals with Fundamental Freedoms, Rights
and Duties of Citizens besides the non-extradition
right stated under Chapter Six. Accordingly, it
incorporated rights, like equality before the law,
equality of men and women, free education,
freedom of speech, press, association, presumption
of innocence, to elect and to be elected etc).vii
This
constitution emphasizes socio-economic and
cultural rights due to the socialist tendency of the
regime (Tsegaye, 2009:298; Adem, 2011:42). But,
there was hardly a vibrant human rights culture that
specially fostered the assertion of civil and political
rights (Africa Watch, 1991:10; Tsegaye, 2009:298).
Additionally, Ethiopia also joined the international
human right conventions such as the Convention on
the Elimination of Racial Discrimination (CERD)
and the Convention on the Elimination of All Forms
of Discrimination against Women (CEDAW) in
1976 and 1981 respectively (Brems, 2007:52;
Muhammad, 2011:20). Despite those conventions
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and other rights and freedoms incorporated in the
constitution, their implementation on the ground
was poor.
Above all, the Derg regime was known by the worst
human right records in the world. The regime was
responsible for violations of human rights on an
enormous scale including the torture, murder, and
disappearance of tens of thousands of Ethiopians
during the Red Terror campaign and continued to
commit such violations until it‟s down fall ( Balsvik,
2007:77; Human Right Watch, 2003:8; The
Advocates for Human Rights, 2009:7). Hence,
despite its incorporation of human rights, the regime
was known by brutal violations of human rights.
4. Human Rights under the Federal
Democratic Republic of Ethiopia
The Transitional Charter of Ethiopia had served for
three years as an interim constitutional framework
providing the basic governmental structures that
opened adequate space for the protection of
individual and group human rights (Hashim, 2010:
11). The transitional government has incorporated
the UDHR into its Charter and promised that human
rights and civil liberties will be respected (Allen,
1993:446). The Charter also asserts that based on
the UDHR individual human rights shall be
respected fully without any limitation whatsoever;
and acknowledged rights under article one and two
of the charter.viii
More importantly, the Charter
promised rights to the extent of exercising right to
self-determination of independence.ix
This
represents a very welcome change from the
government of Mengistu, which had an abysmal
human rights record. This charter served as a
foundation for the 1995 FDRE constitution.
4.1. The 1995 FDRE Constitution
The very significance of human rights is clearly
recognized in the preamble of the constitution,
which states the full respect of individual and
people‟s fundamental freedoms and rights as
foundation for building a political community
founded on the rule of law and capable of ensuring a
lasting peace guaranteeing a democratic order.x
Most importantly, the sanctity of human rights is
stated as one of the five fundamental principles of
the constitution. Article 10 (1) of the constitution
states that, “human rights and freedoms, emanating
from the nature of mankind, are inviolable and
inalienable”. This principle establishes the idea of
inherence, universality, indivisibility, and
inviolability of human rights (Tsegaye, 2009:301).
Hence, the idea of human right becomes more
recognized,
celebrated and given utmost significance in this four
th written constitution of Ethiopia. In this connectio
n, Tsegaye (2009:302) noted that the cumulative
effect of the five fundamental principles of
constitution is that they create a hospitable
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environment for a better protection of human rights
in Ethiopia.
The constitution has 106 articles with 11 chapters
and nearly one-third of the provisions of the
constitution deals with fundamental rights and
freedoms. This shows a major break from the past
constitutional traditions. In its Chapter Three the
constitution offers a long list of rights that are
divided into two major categories, namely that of
„Human Rights‟ and „Democratic Rights‟. Part One
of the chapter deals with human rights which covers
articles from 14-28 and part two deals with
democratic rights from article 29-44. Just to mention
some human rights under part one (the right to life,
security of person, liberty, prohibition against
inhumane treatment, right of person arrested, right
of persons accused etc.) and under democratic rights
(right of opinion, expression, assembly,
demonstration and petition, freedom of association,
freedom of movement, rights of nationality, marital,
personal and family rights etc.).xi
Another important improvement in the area of
human rights is the enactment of the criminal law,
which is introduced replacing the 1957 penal code
due to recognition by the Constitution and
international agreements ratified by Ethiopia of,
inter alia, human rights and democratic rights and
freedoms.xii
4.2. Ethiopia’s Ratified / Acceded
International Conventions
The 1966 two international conventions namely
International Convention on Civil and Political
Rights (ICCPR) and International Convention on
Economic, Social, and Cultural Rights (ICESCR)
were not ratified by any one of the preceding
governments and it is in this current regime that
both treaties acceded in 1993 (Brems, 2007:52;
Muhammad, 2011:19; Brietzke, 1995 :24; Vadala,
2009:1074; Goel, 2009:143). Thus, besides its
National Bill of Rights, Ethiopia is subject to those
International Bill of Rights (ICCPR, ICESCR and
UDHR) with the exception of the two Optional
Protocols of ICCPR on an individual complaint
mechanism (1996) and on the abolition of the death
penalty (1989)( Brems, 2007:52). Thus, when one
goes through the whole provisions of chapter three
of the 1995 constitution, he/she can understand how
far those rights listed in the 1966 conventions
(ICCPR&ICESCR) are incorporated into the legal
framework of the current regime.
Besides the above International Bill of Rights,
another new development regarding the Ethiopia‟s
ratification of the international human right treaties
is its ratification of the Convention on the Rights of
the Child (CRC) in 1991, though it has not yet taken
any action with respect to the 2000 Optional
Protocols on the sale of children, child prostitution
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and child pornography and on the involvement of
children in armed conflict (Brems, 2007:52;
Muhammad, 2011:19; Goel, 2009:143).
Additionally, Ethiopia became a party to the
Convention against Torture (CAT) in 1994, albeit
did not join the 2002 Optional Protocol establishing
a system of regular visits (Brems, 2007:52;
Muhammad, 2011:19). Moreover, the CERD and
CEDAW which Ethiopia joined in 1976 and 1981,
respectively, remain part and parcel of the Ethiopian
legal framework (Brems, 2007:52; Muhammad,
2011:20). Besides these, Ethiopia also ratified
African Charter on Human and Peoples‟ Rights in
1998 (Ibid: 20). It is without any reservation on the
substantive provisions that Ethiopia ratified/acceded
those conventions (Muhammad, 2011:19). Hence,
Ethiopia is a party to all major international treaties
on human rights (Abbink, 2009:12).
Most importantly, those rights under chapter three
of the FDRE constitution required to be interpreted
in line with the above mentioned international
instruments. Article 13(2) states that the
“fundamental rights and freedoms specified in the
chapter shall be interpreted in a manner conforming
to the principles of the UDHR, International
Covenants on Human Rights and International
instruments adopted by Ethiopia”.xiii
Besides, as per
article 9 (4) of the constitution all international
agreements ratified by Ethiopia are an integral part
of the law of the land. Thus, the abovementioned
international human right treaties are part and parcel
of the constitutional framework of the country.
From this one can deduce the massive incorporation
of human rights into the legal frameworks of the
current regime.
As far as institutional structure concerned
legislature, executive, and judiciary are the
important bodies in charge of administering rights
(Tsegaye, 2009:303). Ethiopian Human Rights
Commission (EHRC), the Institution of the
Ombudsman, and some similar institutions are also
special bodies that guarantee human rights in
Ethiopia (Tsegaye, 2009:304). The promise of the
constitution for establishment of Human Rights
Commissionxiv
and the institution of the
Ombudsmanxv
, unlike the previous regimes‟
constitutions, underscores the great attention given
for the protection and promotion of human rights.
The institution of Ombudsman is established to
bring good governance through ensuring citizen‟s
rights.xvi
In a nutshell, the constitution is a human
rights friendly text.
Nonetheless, needless to say, this massive
incorporation of human rights to the constitution and
other legal frameworks of the country does not
mean that they are fully realized. The issue of
implementation of human rights is subject to
different criticisms by different authorities. Some
maintained that the current regime of Ethiopia has
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poor human right record and has been condemned
widely for its massive violations of human rights
(Alemayehu, 2008:124; Tronvoll, 2008: 50;
EHAHRDP, 2008:3; Asafa, 2005:11). There have
been constant arguments about rights‟ violations and
repression, notably the Western donors have
expressed disappointment over the government
forces‟ killing of 190 demonstrators in 2005, and
over the general repression that followed (Abbink,
2009:18-19; EHAHRDP, 2008:3). Besides,
international human rights organizations, in
particular Amnesty International, Human Rights
Watch and Africa Watch, have consistently
documented serious human rights violations in the
country (Mohamud and Doornbos, 2002:74). Other
regional and local monitoring groups, such as the
Ogaden Human Rights Committee, the Ethiopian
Human Rights Commission and the Sidama
Concern, have published similar reports (Ibid:74).
Furthermore, The Advocates for Human Rights
(2012: 1-2) noted that ICESCR are violated by the
current government of Ethiopian. Committee on the
Elimination of Racial Discrimination also criticized
the government for the violation of CERD
(Tronvoll, 2008: 57). Thus, Ethiopia has remained
to be a state known to the world for its recurrent
lack of respect for human rights (Asafa, 2010:161).
5. Changes and Continuities
There are changes and continuities on the status of
human rights across the three successive regimes‟
legal frameworks. These are apparent in the
coverage, scope, amendment and implementation of
rights. These are discussed one by one as follows.
The FDRE Constitution has extensive coverage
dealing with various themes of democratic and
human rights from Art. 14-44. The previous legal
frameworks were not as such wide in coverage. For
instance, the 1931constitution contains, if one
strictly looks, only 7 articles; the 1955 constitution
has 27 articles; and the 1987 constitution has 18
articles. In addition to rights incorporated in the
previous constitutions, the current constitution
added further elaborated rights and freedoms and
thereby widens its coverage.
The principle of inviolability and inalienability of
human rights can also be understood as another
peculiarity in the 1995 constitution as compared
with the past legal frameworks. Besides, as far as
scope of application concerned fundamental rights
and freedoms in the 1995 constitution shall be
interpreted in a manner conforming to the principles
of UDHR and International Covenants adopted by
Ethiopia. This broadens their scope of application.
This is major change in the status of human rights
which has not been stated in the three foregoing
constitutions.
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Besides the interpretation requirement, the high
value given to human rights is further revealed in
their amendment requirement. Amendment of
human rights provisions of the 1995 constitution is
subject to special and stringent procedures unlike
what is applied to other provisions of the
constitution.xvii
This is to avoid unnecessary
degeneration and to consolidate the sanctity of
human rights. The 1931 constitution has no
provision about amendment at all, whereas the 1955
revised constitution has no special procedure given
to human rights provisions.xviii
The 1987
constitution also stipulates no special stringent
criteria to human rights provisions.xix
Thus, the 1995
constitution is unique and has this major departure.
Generally, the degree of inclusion of and emphasis
given to human rights varies across the three
regimes. And this by far increases in the current
regime in that human rights are massively
incorporated and given special attention. What still
persists in all the three successive regimes, however,
is the prevalence of violations of human rights,
though the degree differs.
6. Conclusion
In the pre-constitutional period of Ethiopia human
rights had no place to be entertained. The
incorporation of human rights into the legal
frameworks started since the 1931 constitution of
Ethiopia, under the imperial regime. But, though
this constitution incorporated few rights of subjects,
they were not realized as the constitution mainly
devoted to magnify the sacredness of the emperor.
Later, the constitution was replaced by the 1955
revised constitution which introduced more
extended progressive human rights that adopted
from western countries. However, once again the
constitution reaffirmed the absolute power of the
king and human rights violations remain intact. At
the end, the monarch introduced a Draft
Constitution which by far better in massively
introducing rights. Nevertheless, it could not last
long and immediately averted.
Human rights continued to be incorporated in the
1987 PDRE constitution. Having the tendency to
socialist ideology more emphasis was given to
economic, social, and cultural rights. Nevertheless,
it was in this period that very heinous and extreme
violations of human rights occurred under the
operation of Red Terror.
In the existing legal framework of Ethiopia
incorporated a wide range of rights recognized in the
International Bill of Rights to its National Bill of
Rights. The reach and application, interpretation,
limitations, and entrenchment of the provisions of
human rights under chapter three underscore that the
constitution is a very human rights friendly text.
Moreover, an enormous change come since 1991 as
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far as human rights discourse, institutions,
advocacies, civil societies, and ratifying
international human rights treaties concerned.
However, it does not mean that human rights are
well realized on the ground, which makes the
regime similar with the past regimes.
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NOTES
i The 1931 Constitution of Ethiopia, chapter III
ii The 1955 revised constitution of Ethiopia, Chapter 3, Art. 37-65.
iii The Penal Code Proclamation No. 158/1957 of Ethiopia
iv The 1973 Draft Constitution of Ethiopia, Chapter 2, Art. 21-59.
v Ibid, Chapter 9, Art.143-146.
vi The 1987 Constitution of People‟s Democratic Republic of Ethiopia, Preamble, paragraph 12
vii Ibid, Chapter 7, Art. 35-52.
viiiTransitional Period Charter No. 1/1991 of Ethiopia, Part one, Art 1-2.
ix Ibid, Part one, Art 2 (c).
x FDRE Constitution, preamble, paragraph 2 &5.
xi Ibid, chapter 3, Art. 14-44.
xiiThe Criminal Code Proclamation No.414/2004 of the Federal Democratic Republic of Ethiopia, Preface,
Paragraph 1.
xiii FDRE Constitution (see n.10), Chapter 3, Article 13(2)
xiv Ibid, Article 55(14)
xv Ibid, Article 55(15)
xvi The Institution of the Ombudsman Establishment Proclamation No. 211/2000.
xvii FDRE Constitution (see n.10), Article 105(1).
xviii The 1955 revised constitution (see n. 2), article 131.
xix The 1987 Constitution (see n. 6), article 119.
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