Chapter Five
Constitution, Democracy and
Human Rights
Constitution and Constitutionalism
Constitution is figuratively defined as the fundamental or basic law
of a state which sets out the structure of the state and also lists the
rights of citizens alongside the limits on the power exercise of a
government.
It is a blue print placed on top the hierarchy of laws on constitutional
governments.
A constitution may be said to be a collection of principles according
to which the powers of the government, the rights of the governed,
and the relation between the two are adjusted.
Cont--d
It refers to body of rules and laws that:
determine the organization of government and the distribution of powers and
functions to various organs of government
regulate the relationship among themselves and also between the state and
its individuals through general principles on which these powers are to be
exercised.
Constitution is the mothers of all laws; all other ordinary laws are derived
from and subjected to this blue print.
Hence, since constitution is supreme law of a land, any other law
contradicted with the provisions of the constitution becomes void or invalid.
Peculiar Features of Constitution
Constitution has distinctive features that distinguish it from any other
laws. These are:-
A. Generality: constitution provides general principles where as laws
provide the details of the subject for which they are created,
It serves as a guidelines for others laws.
B. Permanency: unlike laws constitution is made for undefined period
of time. It is purposely made to be stable and permanent. It is made to be
stable. On the contrary, other laws are tentative, occasional and in the
nature of temporary existence.
Cont---d
C. Supremacy: Constitutions are supreme laws.
It is original because it is directly made by the people.
All other laws are secondary or derivate being commands of
representatives of the sovereign.
D. Codified document: they are written down; often in a single
document.
E. Allocation of powers: This is probably the most crucial part because it
allocates powers and functions to government and specifies the rights and
duties of governments and citizens-who can do what, to whom, and under
what circumstances.
Major Purposes and Functions of Constitution
The following are some of the major purposes and functions of
constitution.
It serves as a framework for Government: it is a brief and a general
outline of duties and rights of governments and citizens.
It Limits the Powers of Government
It protects individual and collective rights of citizens
It serves as the Supreme (Highest) Law of a Country
It provides Government legitimacy/stability
It serves as blue Prints for establishing Values and Goals
Classification of Constitutions
Constitutions are classified into different categories using the
following criteria: form, amendment procedure and degree of
implementation/practice.
A. Constitution based on form: based on form/appearance
constitutions can be classified as written and unwritten.
B. Constitution based on complexity of amending process: On the
basis of the distinction in the process of amendment, constitutions
may be classified as rigid and flexible.
Rigid Constitution
The process of amendment is difficult.
It does not adapt itself to changing circumstances immediately and quickly or
simply one whose amendment procedures are relatively complex or difficult.
A more difficult procedure of constitutional amendment is the one which
requires a national referendum.
A referendum is the process of direct voting by citizens to support or rejects
at constitutional amendment or other major national issues.
Countries like USA, Australia, Denmark and Switzerland are known to have
rigid constitutions.
Flexible Constitution
There is no special required procedure for amending a constitution.
The simplest and commonest amendment procedure is the one which
requires an absolute majority (two thirds support) in the parliament.
If it is very simple and convenient, the constitution is flexible.
It adapts easily and immediately to changing circumstances or simply
one whose amendment procedures are relatively simple.
The United Kingdom and New Zealand, may be altered by a simple
majority vote in the legislature.
Constitution based on degree of practice
On the basis of the degree to which constitution of state observed in practice, it
can be classified as effective and Nominal Constitution.
Based on the kind of state structure: a constitution is classified as unitary and
federal.
1. Federal constitution
It distributes power among the different units of a state administration.
it classifies and decentralizes power between the central government and
regional/local units
Example: the United States of America, Canada, Australia and Malaysia
2. Unitary Constitution
State power is concentrated in the hands of the central
government.
The central government can establish or abolish the lower
levels of government; determine their composition, and their
power and functions.
In this case the local government has no guarantee for their
existence.
Powers and responsibilities are delegated to them by the
central government.
Constitutionalism
Constitutionalism does not merely require the existence of
constitution
It needs effective implementation of the constitutional provisions.
The main difference between constitution and constitutionalism
lies in the fact that the constitution is generally a written document,
created by the government, while constitutionalism is a principle
and a system of governance that respects the rule of law and limits
the power of the government.
The Constitutional Experience of Ethiopia: Pre and Post 1931
Traditional Constitution (Pre- 1931)
Ethiopia is one of the oldest states in Africa to experience statehood and an
organized government.
During its long history, however, it didn’t have any written document that can
be taken as a constitution.
The traditional constitutional experience was characterized by the dominance
of myths and legends that were used to provide legitimacy to the monarchs.
Fetha Negest (glory of kings) which served as the country’s constitution.
Kibre Negest was a religious and secular legal provision.
It was used as the sources of constitutional, civil, and criminal laws.
Cont---d
The Kibre Negest (The Glory of Kings), written during the 13th
Century, mystifies that the Ethiopian monarchs derived their power
to rule from God and, therefore, they could not be accountable to
any power.
This document takes the Ethiopian history back to the Solomonic
dynasty, where the queen of Sheba made romantic tripe to King
Solomon of Israel and gave birth to the first Ethiopia king Menelik I.
Lack of written constitution does not necessarily implicate the total
absence of constitutional rules and principles in the legal history of
the country.
Ser’ate Mengist
It was another traditional document that had been used as
constitution by the traditional rulers before 1931.
The ser’ate Mengist was one of the traditional documents of
the nineteenth century that provided certain administrative
protocol and directives in the 19th century.
The Ser’ate Mengist can hardly be considered to be a
document of Constitutional Law in its widest sense.
The 1931 First Written Constitution
In 1931 following the coronation of Emperor Hailesilassie I, the first
written constitution was introduced, which was the first modern
constitution for the country.
The emperor introduced this constitution for two basic purposes:
1) To give Ethiopia the image of modernity in the face of the
international community; and
2) To strengthen and centralize his absolute power by extending
his power over the regional feudal rulers.
Cont---d
It is believed that both internal and external factors forced the development of the
1931 constitution.
Externally: it was the result of the growing interaction between Ethiopia and the
external world, particularly the western European countries.
To became a member of League of Nations
To show the image of modernity
However, the 1931 constitution was failed to achieve external goals as intended
by the emperor.
Internally: It was designed to unify and centralize all state power in the hands of
the monarch.
The Revised Constitution of 1955
After 24 years of experimentation, the 1931 constitution was
revised.
There were two basic reasons that forced the emperor to revise the
constitution.
1. The first reason was the federation of Eritrea with Ethiopia in
1952. Eritrea had its own constitution with some democratic
elements. Therefore, if the federation is to work, the Ethiopian
constitution had to be revised to accommodate those democratic
ideals.
Cont--d
Secondly, during the 24 years of the emperor’s rule, the country had witnessed
some economic and social changes.
This included: closer ties with the outside world; membership in the UNO; signs
of modernity; movement of people and development of commerce with the
outside world.
Such development forced the emperor to revisit the constitution.
The third factor that forced the emperor to revise the constitution was pressure
from educated Ethiopians.
These Ethiopians who were educated abroad were making demands to revise the
constitution so as to incorporate democratic ideals.
The 1987 Constitution of People’s Democratic Republic Ethiopia
(PDRE)
With the downfall of the imperial regime, the Dergue setup the Provisional
Military Administrative Council (PMAC) type of temporary government.
Derg suspended the 1955 constitution and began to rule the country by a
series of decrees and proclamations.
Though it was late, during the Dergue regime a new constitution was
adopted in 1987.
In accordance to the provisions of this constitution, a government with a
new name, People’s Democratic Republic of Ethiopia (PDRE) came into
existence.
Cont---d
The People’s Democratic Republic Ethiopia constitution (1987) was different from the
1931 and the 1955 imperial constitutions in that constitution:
State and religion were separated (issue of secularism was included in the constitution)
for the first time;
contains provisions on democratic and human rights;
recognized the different cultural identities and the equality of Nation and Nationalities;
Introduced a party system by giving recognition to the workers party of Ethiopia. Thus,
leading to a transition from a none party system to a single party system;
aimed at the principles of Marxist and Leninist ideology;
Aimed at giving power to the peoples so that they exercise through referendum, local
and national assembly.
The 1995 (FDRE) Constitution
The FDRE constitution has a wider coverage of both human and
democratic rights.
Of the total 106 articles of the constitution just about one third
(approximately 33 articles) is devoted to the discussion of rights.
The 1995 Constitution has some salient features.
It introduces a federal form of governance
It declares the rights of nations, nationalities and peoples of Ethiopia to
exercise their self determination including the right to secession.
It gives recognition to five fundamental principles
Democracy and Democratization
• Democracy literally means the government of the people or
government of the majority.
• Democracy is the form of government in which the highest
power of the state is vested with the people.
• According to Abraham Lincoln, “democracy is the government
of the people, by the people and for people”.
• There are two broad ways of exercising democracy: Direct and
Indirect/Representative democracy.
Cont---d
Direct democracy implies a form of government
in which the right to make political decisions is
exercised directly by the whole body of citizens
acting under procedures of majority rule.
It is also known as pure/classical democracy.
Every decision concerning the government is
decided based on popular vote.
This kind of democracy was mainly practiced in
Ancient Greece city states.
Cont--d
Indirect democracy refers to a form of government
in which citizens exercise their rights and freedoms
and discharge their obligations not in person but
through representatives chosen by themselves.
Citizens will submit their sovereignty for their
representatives.
The representatives will act on the behalf of the
citizens they are representing.
Values and Principles of Democracy
There are three core values that are central in the discussion of the concept of
democracy.
o Liberty:
This value includes personal freedom to mean that Individuals should be free
from arbitrary arrest and detention.
Political freedom implies that people of a nation have the right to participate
freely in the political process.
Economic freedom to mean that citizens should have the right to acquire, use,
transfer and dispose of private property without unreasonable governmental
interference.
Cont--d
o Justice: This value of democracy can be understood in three
general senses of fairness.
Distributive Justice: the sense of distributing benefits and
burdens
Corrective Justice: the sense that a proportional response should
be in place to correct wrongs and injuries.
Procedural justice: the idea that procedures used for gathering
information and making decisions should be guided by principles
such as impartiality and openness of proceedings.
Cont--d
o Equality: There are three notions of equality. These are:
Political equality: implying that all people who attain the status
of adult hood have equal political rights.
Social equality: implying that there should be no social
hierarchy at individual and collective level or no discrimination
what so ever.
Economic equality: peoples of a country deserve equal and fair
assessment to the national resources services.
Cont--d
Some of the fundamental principles of democracy are: These are:
A. Popular Sovereignty: associated with power and legitimacy.
Popular sovereignty also means that the people have the right to withdraw
their consent when the government fails to fulfill its obligations under the
constitution.
B. Constitutional Supremacy: puts the constitution at the highest level in the
hierarchy of laws.
This principle dictates all laws and governmental or non-governmental acts to
be under the constitution.
Cont--d
C. Rule of Law: There are two aspects of the rule of law.
I. The law should govern the people and the people should obey
the law.
II. The law must be capable of being obeyed (‘good’ laws).
The rule of law is the principle under which a government
exercises its authority in accordance with clear, objective, and
publicly disclosed laws.
The principle is intended to be a safeguard against arbitrary rule.
Cont--d
D. Secularism: the separation of state and religion.
E. Separation of Powers: It is an essential feature of
constitutional government.
F. Free, Fair and Periodic Election
G. Majority Rule Minority Right
H. Protection and Promotion of Human Rights
I. Multiparty System: having several political parties
working together in one political system.
Democratization
Democratization is the process of transitions from nondemocratic
to democratic regimes that occur within a specified period of
time.
There are three main elements in democratization such as the
removal of the authoritarian regime, installation of a democratic
regime, and the consolidation, or long-term sustainability of the
democratic regime.
It involves the full-scale transition from authoritarian regime and
its replacement by democratically elected regime.
Actors of Democratization
I. Political Parties
It has been argued that parties are ―endemic to democracy, an unavoidable part
of democracy.
In a democratic system, political parties provide the proper mode of functioning
for the government so that the majority party or a combination of parties controls
the government, while other parties serve as the opposition and attempt to check
the abuses of power by the ruling party.
The existence of a strong and viable opposition keeps the ruling party alert. It is
also the duty of political parties to promote policies that will educate the people
about how a democratic system functions and offer different policy packages to
the electorates.
Cont--d
II. Media
Media has an influential role in strengthening democracy.
Media and democracy have strong association.
Countries which are strong democracies always have strong and
free media.
Media in all countries serves as a watchdog, monitoring those in
power, as a source of information, to hold governments
accountable for their actions, a civic forum and an agenda setter.
Cont--d
III. Civic Societies
It is a the backbone of democracy.
Civil societies have a potential of playing numerous momentous roles for
democratic development and consolidation.
To mention some: limiting the power of the state, including challenging
the abuses of authority; monitoring human rights and strengthening the
rule of law; monitoring elections and enhancing the overall quality and
credibility of the democratic process; educating citizens about their rights
and responsibilities; building a culture of tolerance and civic involvement
etc.
Human Rights
It is also common to call them ‘natural’ rights, since they are natural
entitlements to everyone.
The Universal Declaration of Human Rights (UDHR, Article 2),
stipulates that human rights belong to every human being “without
distinction of any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status” (Art. 2).
The only criteria someone must fulfill to enjoy these rights is being a
human.
Cont--d
Human rights are not just theoretical; they are recognized standards to which
governments are to be held accountable.
Human rights are entitlements naturally endowed to all persons equally,
universally and for a life time.
These are entitlements everyone can claim just because they are human beings.
The only precondition someone needs to fulfill in order to claim human rights is
being a human. Hence, they are necessarily imperative in forming and preserving
a fair and civilized society.
Human rights are established upon some main principles including universality,
inalienability, indivisibility and interdependence.
Principles of Human Rights
Human rights are universal: This means all rights are expected to be
applied equally everywhere, every-time and to everyone in this world.
Article one of the Universal Declaration of Human Rights (UDHR)
stipulated that “All human beings are born free and equal in dignity
and rights.”
It also stated that human rights belong to every human being “without
distinction of any kind, such as race, color, sex, language, religion,
political or other opinion, national or social origin, property, birth or
other status” (Art. 2).
Cont--d
Human rights are inalienable.
That means you cannot lose these rights any more than you
can stop to be a human being.
Human rights are not luxury or privileges we only enjoy after
some preconditions are met, rather part of our basic necessities.
Human rights are indivisible.
This implies that human rights are inherent to the dignity of
every human person.
Cont--d
Human rights are interdependent and interrelated.
This is to mean that all rights have equal weight/importance and it is not possible for one to
fully enjoy any of his/her right without the others.
For instance, one cannot enjoy his/her right to life without his/her rights of health,
education, freedom from torture and inhuman treatment, right to an adequate standard of
living and the like.
The violation of all these rights threatens one’s life and existence in general. That is true for
all our human rights, not possible to enjoy the one ignoring the other.
That means we cannot prioritize one right from others, because no right can stand on itself.
The fulfillment of one right often depends, wholly or in part, upon the fulfillment of others.
Cont--d
The principle of equality and non-discrimination.
This means that all individuals are equal as human beings and by
virtue of the inherent dignity of each human person.
Accordingly, no one should face discrimination on the basis of
race, color, ethnicity, gender, age, language, sexual orientation,
religion, political or other opinion, national, social or geographical
origin, disability, property, birth or other status as recognized by
many of the international and regional, national human rights
frameworks.
Categories of Human Rights
The common way of categorization is the one developed by Karl Vasak
(1982) who have classified Human Rights into three: First, Second and
Third generation rights.
I. Civil and Political Rights
Civil and political rights are the first generation rights which uphold the
sanctity of the individual before the law and guarantee his or her ability to
participate freely in civil, economic, and political society.
Civil rights include such rights as the right to life, liberty and personal
security, equality before the law, protection from arbitrary arrest and the
right to religious freedom and worship.
Cont--d
Political rights include such rights as the right to speech and expression,
assembly and association, vote and political participation.
Political rights thus guarantee individual rights to involvement in public
affairs and the affairs of state.
Civil and political rights are seen as an immediately realizable rights.
No precondition could be acceptable for any violations of civil and
political rights.
They have also been called as ‘negative’ rights to indicate the fact that
they simply entail the absence of their violation in order to be upheld.
II. Social and Economic Rights
It is the second generation (social, economic, and cultural) rights
It is an aspirational and programmatic set of rights.
It can achieve through progressive implementation.
They are called ‘positive’ rights to indicate that whose realization is highly
subjected to the economic capability of states.
They are considered as “less fundamental” or unrealistic rights because of the
issues of justicialibility.
Justiciability is not obviously the quality of economic, social and cultural rights.
Social and economic rights include such rights as the right to education, health
and wellbeing, work and fair remuneration, form trade unions etc.
III. Peace, Development and Environmental Rights
It is third generation (solidarity) rights.
It is aimed to guarantee that all individuals and groups have the right to share in the
benefits of the earth's natural resources, as well as those goods and products that are
made through processes of economic growth, expansion, and innovation.
Many of these rights are transnational in nature.
They requires redistribution of wealth, resources from developed to developing
nations.
Solidarity rights also require global cooperation and shared responsibility to world
peace, development and the environment. Third Generation (solidarity) rights include
rights to public goods such as the right to development, the environment and peace.
The third generation rights are still considered as an emerging rights.
The summary of the classification of rights
Generation First generation Second Third generation
rights generation rights rights
Category of Civil and political Socio-economic Solidarity rights
rights rights rights
State obligation Promoting and Providing and ?
protecting fulfilling
What is expected Non-interference Positive Positive
from the State interference involvement
Realization Immediate Progressive Progressive
Right holders Individuals Groups (mostly) ?
(mostly)
