Chapter VIII:

Fundamental Rights and Freedoms under the FDRE

Constitution

The Constitution devotes more than one third of its content to provisions on fundamental human
and people’s rights.14 Moreover, there are provisions that deal with national policy principles
and objectives which either establish important guarantees or have direct relevance to the
interpretation of fundamental rights. The Constitution imposes a responsibility and duty to the
respect and enforcement of fundamental rights and freedoms at all levels of the federal and state
legislative, executive and judicial bodies.

The Constitution further elevates the horizon of human rights through reference to international
and regional human rights instruments as thresholds for the interpretation of its human rights
provisions.

In terms of substantive guarantees, the Ethiopian Constitution is the only one in Africa to
recognize the right to self-determination of “nations, nationalities and peoples”. This right
extends up to creating regional states within the federal state and can even extend up to secession
under the conditions stated in the Constitution.

The Constitution also establishes separate procedures for the amendment of the human rights and
fundamental freedoms. To avoid any possible regression and safeguard the gains, a more
stringent and rigorous procedure is required to amend the provisions relating to the fundamental
rights and freedoms than the remaining parts of the Constitution. The Constitution fortifies these
features through the supremacy clause under Article 9(1).

Interpretation of Human Rights and Fundamental Freedoms

Interpretation refers to the ascertaining or determination of the meaning of a legal provision.27

Contemporary constitutions generally provide that their bill of rights should be interpreted
generously and holistically.28 The Ethiopian Constitution does not include a general
interpretation clause whose application permeates all of its provisions. It does however contain a
laudable interpretation clause regarding the chapter dealing with human rights and fundamental
freedoms.29 Article 13(2) requires that the bill of rights “shall be interpreted in a manner

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
conforming to the principles of the Universal Declaration of Human Rights (UDHR),
International Covenants on Human Rights30 and international instruments adopted by
Ethiopia”.31 It should be noted that the relevant instruments need not have been ratified by
Ethiopia. However, the reference is limited to adopted instruments and does not include
customary international law per se.

The status of international instruments in general (and human rights instruments in particular) in
the Constitution is not definite and is subject to academic debate. Article 9(1) of the Ethiopian
Constitution declares the supremacy of the Constitution. Hence, a literal reading of this provision
clearly indicates that international instruments, which, under Article 9(4), are made an integral
part of the laws of the land upon ratification, are subordinate to the Constitution. Since human
rights treaties are also part of a special kind of international agreements, they should be
understood to be subordinate to the Constitution. However, the inclusion of the interpretation
clause (Article 13/2 in relation to the fundamental rights chapter) has led some scholars to
conclude that international human rights instruments adopted (and not just ratified) have a status
higher than, or at least equal to, Chapter 3 of Constitution itself.

The requirement that interpretations should conform to international instruments, however, only
applies to human rights provisions included in Chapter 3 of the Constitution.34 There are other
provisions outside this Chapter that are directly or indirectly relevant to human rights. Chapter
10 that deals with the National Policy Principles and Objectives, for instance, contains essential
provisions germane to human rights particularly to socio-economic and environmental rights.35
Even more directly relevant is the provision that deals with derogation of rights.36 Interpreting
the derogation clause probably needs more guidance based on international and regional
instruments and jurisprudence. However, since the provision dealing with the substantive and
procedural requirements for derogation of rights in emergency exists outside Chapter 3, the
interpretation of the derogation provision does not have to be in conformity with international
standards.37 However, the interpretation provision should be understood purposively to oblige
guidance and conformity in interpreting all provisions that have direct or indirect bearing on the
fundamental rights and freedoms enshrined in the Constitution.

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
General Principles of International Law: Monism and Dualism

The conventional wisdom in international law is that a state can accept and integrate
international law into the domestic system in one of two ways. In a monist legal system,
international law is considered joined with and part of the internal legal order of a state. In a
dualist legal system, on the other hand, international law stands apart from national law, and to
have any effect on rights and obligations at the national level, international law must be
domesticated through legislative process. The tension between these competing views of
international law reached its height in Europe between World War I and World War II, when
legal scholars began to seriously question how and to what extent binding international legal
obligations and formal international institutions could minimize the threat of war. At its core,
however, the distinction between a monist and dualist theory rests between two competing and
important goals. Specifically, monist theory prioritizes the desirability of a formal international
legal order to establish the rule of law among nations, while dualist theory prioritizes the notions
of individual self-determination and sovereignty at the state level.

Under a monist model, international law serves not merely as a legal framework to guide state-
to-state relations in the international sphere, but as a source of law integrated into and superior to
domestic law. As such, a properly ratified or accepted treaty forms part of the national legal
regime. An important consequence of this understanding of the role of international law is that it
may be applied and enforced directly in domestic courts without the necessity of domestic
implementation. This framework thus creates a single and unitary legal system, with
international law at the top of the legal order and local, municipal law subordinate. The monist
view is attributed most often to the work of Austrian legal scholar Hans Kelsen, who advocated
in the 1920s for the primacy of international law as a derivative of natural law, rather than as
merely an expression of the individual decisions of states to be bound by certain norms through
customary practice. Ultimately, Kelsen’s monist theory was intended to promote international
peace by creating binding obligations enforceable against state actors in formal international
justice institutions, as indicated in his famous work, Peace Through Law (1944).

At the same time that Kelsen was attempting to redefine the relationship between the state and
the international legal order, dualist legal theories emerged as the theoretical counterpart to
Kelsen’s unitary vision of law. Under a dualist model, there is a dichotomy between

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
international legal obligations that states as sovereigns agree to recognize in their foreign
relations, and domestic legal rules that are binding in internal relationships between the state and
its citizens or subjects. Accordingly, international law can only have binding legal force at the
domestic level if it is implemented at the national or local level. One of the most notable
proponents of the dualist theory of international law was German scholar Heinrich Triepel, who
argued that international law was a manifestation of the "common will" of sovereign states. As
such, there was a complete separation between international law and state law. From this
theory, the common understanding of dualism has emerged that international law is not supreme
to domestic law, and the relevance of international law in the domestic legal regime is a question
left to the local political processes. For example, under this framework, a treaty takes effect and
is binding in international relations once it is executed by the head of state. To be binding at the
domestic level, and enforceable in a domestic court, the treaty must be specifically implemented
through appropriate legislation.

In terms of constitutional sources of authority, Article VI of the United States Constitution

clearly states that the “Constitution, and the laws of the United States which shall be made in
pursuance thereof; and all treaties made, or which shall be made, under the authority of the
United States, shall be the supreme law of the land; and the judges in every state shall be bound
thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.” This
express incorporation of treaties into binding (and supreme) domestic law was complemented by
the understanding that customary international law “is part of our law,” as famously noted in the
United States Supreme Court’s decision in The Paquete Habana, 175 U.S. 677 (1900).

What is the case of FDRE Constitution in relation to monist and Dualist approach? Which
approach it clearly adopts?

Protected Rights

The Ethiopian Constitution incorporates several human rights. The recognition ranges from
traditional civil and political rights to socio-economic and group or solidarity rights. This is
further reinforced by the National Policy Principles and Objectives.

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
3.1- Civil and political rights

The Constitution embodies several civil and political rights most of which are adopted from the
provisions of the UDHR.44 The list includes the right to life (which forbids deprivation of life
except as punishment for a serious offence determined by law),45 to security of the person, to
liberty (which prohibits arbitrary arrest and deprivation of liberty), protection against cruel,
inhuman, or degrading treatment or punishment including the banning of slavery and trafficking
in human beings for whatever reason, and forced or compulsory labor.46 The Constitution
further guarantees the right to equality and equal protection of the law (Article 25); the right to
privacy which may only be limited if “compelling circumstances” exist in accordance with law
(Article 26). The freedom of religion, belief and opinion (Article 27); freedom of thought and
expression including access to information of public interest;47 the right of assembly,
demonstration and petition;48 the right to association for any cause or purpose (Article 31);
freedom of movement including the right to reside anywhere within the national territory as well
as the right to leave and return to Ethiopia (Article 32); the right to nationality, to change it at
one’s will, and not to lose it for the mere reason of marriage to a foreign national are also
recognized.49 Individuals and groups have the right to access to justice to obtain a decision or
judgment over any justiciable matter in a court of law or other competent body with judicial
power.50 The right to vote and be elected is guaranteed to all Ethiopians of age (Article 38);
similarly, the right to property is embodied under Article 40. Moreover, the Constitution includes
guarantees pertinent to the criminal justice system. The right of arrested persons51 to remain
silent; to be promptly informed, in a language she/he understands, of the reasons for their arrest;
to be brought before a judge in 48 hours, and habeas corpus. It also excludes confession or
admission obtained through coercion;52 and establishes the right to bail.53 Accused persons
have the right to a public trial in an ordinary court within a reasonable time; to be informed with
the particulars of the charge; the privilege against self-incrimination and the presumption of
innocence until proven guilty; access to and the right to challenge evidence presented against
them and to adduce evidence on their behalf; the right to be represented by legal counsel of their
choice; and if they cannot afford to pay for such counsel and if miscarriage of justice would

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
result, to be provided with one at the expenses of the state54; and the right to appeal to a
competent court.

Persons in custody have the right to treatment that respects their human dignity. They also have
the right not to be held incommunicado and hence to be visited by their spouses or partners, close
relatives, friends, religious councilors, medical doctors or their legal counsel. The retroactive
application of criminal laws is also prohibited and hence unconstitutional. It is however
controversial whether this guarantee applies to both substantive and procedural criminal laws
alike. The Constitution prohibits double jeopardy in the form of re-trial or punishment for an
offence upon which a final conviction or acquittal has been entered as per criminal law and
procedure. This clearly means that double jeopardy does not apply to cases where there were
irregularities in the application of the relevant criminal law or procedure. Marital, personal and
family rights with equal rights for both sexes while entering or during marriage, or at the time of
divorce; the rights of women to equality, protection from harmful customary and religious
practices, right to maternity leave, right to acquire property, equal employment opportunities,
and access to family planning education and information are also protected. This is further
supplemented by the right to affirmative action.61 The rights of children to name and nationality,
and to be free from corporal punishment or cruel and inhuman treatment in schools and other
institutions responsible for the care of children is also stipulated; the best interest of the child is
the primary guiding principle; juvenile offenders must be detained separately from adults;
children born in and out of wedlock enjoy equal rights.

3.2- Economic, social and cultural rights (ESC Rights)

The Ethiopian Constitution incorporates various ESC rights. Every Ethiopian has the right to
freely engage in economic activities; to choose his/her means of livelihood, occupation and
profession; and equal access to publicly funded services. It further requires the state to allocate
ever-increasing resources to provide social services; provide funds for the rehabilitation of
persons with disabilities, the aged and children without parents or guardian subject to available
means; and to pursue policies aimed at expanding job opportunities for the poor through
undertaking programs and public works projects. It also imposes a duty on the state to protect
and preserve historic and cultural legacies, and to contribute to the promotion of arts and sports.
The Constitution also guarantees several labor rights. These rights include the right to association

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
including the right to form trade unions for collective bargaining purposes; the right to strike;
equal pay for equal work; paid leaves; reasonable limits to working hours; and a healthy and safe
work environment.

The Constitution also guarantees several socio-economic rights as part of the National Policy
Principles and Objectives.69 However, it does not expressly declare the non-justiciability of the
provisions of the National Policy Principles and Objectives.70 Hence, the House of Federation or
other institutions may either directly apply the principles as binding undertakings, or at least use
them to guide the interpretation and understanding of the fundamental rights and freedoms.

3.3- Group or solidarity rights

One essential feature of the Ethiopian Constitution is the recognition of what are called third
generation or group or solidarity rights. The right to self-determination up to secession, the right
to development and the right to a clean and healthy environment are clearly enshrined. The right
to development is recognized as a benefit of the peoples of Ethiopia as a whole, and in the form
of a right to participation. The right to clean and healthy environment similarly recognizes the
right for the benefit of all persons; as such it appears more like a guarantee which accrues to each
individual.

The Constitution also recognizes the right to monetary or alternative means of compensation for
individuals when state programs entail displacement or adversely affect their livelihood.73 The
right of “nations, nationalities and peoples” to self-determination, up to secession74 includes the
right to speak, write, develop their language; to express, promote and develop their culture;
preserve their history; and to self-government and equitable representation in the regional state
and federal governments. The preconditions for secession are listed under Article 39: a twothirds
majority support of the Legislative Council of the nation, nationality and people concerned; a
simple majority vote in a referendum to be organized in a maximum of three years from the time
the demand has been espoused by the relevant Legislative Council, and when transfer of power
and division of assets has been effected. All this process is conducted under the auspices of the
House of Federation.

4. Limitation of Rights under the Ethiopian Constitution

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
Most human rights are not absolute. There may therefore be certain limits to the exercise of
rights. Limitations refer to infringements or encroachments on guaranteed rights under narrowly
contoured permissible circumstances.83 There are different approaches to limitation of rights in
constitutions: some constitutions and international instruments include internal individualized
limitation clauses within each particular right in different details;84 others have adopted general
limitation clauses whose application cuts across all provisions.85 Still others adopt a combined
approach because in addition to a general limitation clause they may include their own internal
limitations. The Ethiopian Constitution only contains claw-back clauses within most of the
protected rights. Some of the internal limitations simply refer to those limitations determined or
established by law; while others are more detailed and require compelling circumstances and
specific laws necessary to safeguard public security, peace, the prevention of crimes, public
morality, and the protection of the rights and freedoms of others. There are therefore different
standards depending on which right the Constitution seeks to limit. The problem is exacerbated
by the absence of a more sweeping general limitation clause in the Constitution that would have
ensured uniformity of standards in scrutinizing the conformity of limitations of rights with the
basic tenets of the Constitution. The absence of a general limitations clause may have advantages
as it leaves some rights, which do not have internal limitations, beyond limitations. For instance,
the protection against torture and inhuman treatment or punishment in the Ethiopian Constitution
may not in any way be limited. This will not generally be the case in a constitution that has opted
for a general limitation clause. For instance, the South African Constitution allows the limitation
of “the rights in the Bill of Rights” so long as it stands the constitutional test of reasonability and
justifiability.88 Hence, in the absence of a general limitation clause, it is possible to have a right
that may not be limited in any way, if there is no internal limitation to that effect. However, lack
of a general limitation clause can have its downsides, as it might invite arbitrary, limitless
limitations. Some in fact describe the general limitation clause as the most important clause in a
bill of rights. If there is a general limitation clause, however, every right is potentially limitable
and rights with internal limitation will be subjected to double limitation analysis.

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
5. Derogation in Cases of Emergencies

The Ethiopian Constitution recognizes possibilities that may require the suspension of protected
rights.94 Derogation clauses relate to provisions that permit the temporary suspension of the
application and enjoyment of rights in response to incidences of emergency that threaten the life
of a nation.

Declaration of State of Emergency

What is a 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.

Emergency as a state power should be treated along with the powers of the PM and the Council
of Minister along with that of HPR. Emergency presents an unavoidable evil which, however,
brings about total or partial arrest of constitutional order. And as such, it should be treated as one
of the limitation on Human Rights.

Need for extra powers during Emergency

“Two World Wars have established the lesson that even in an ultra democratic country, the
Government would need extraordinary powers in order to be able to meet a threat against the
State itself, by situations such as a war or external aggression or even internal rebellion, civil war
or the like, which render it impossible for the normal Constitutional machinery to cope with the
abnormal situation.

“Whatever be the form of Government, emergent situations are bound to arise in any country,
owing to various factors like war, rebellion, natural disaster, economic or financial breakdown

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
which call for immediate measure to be taken by the Government to safeguard the stability of the
country or the safety of the citizens, which, in order to be adequate, must be different from or in
addition to the normal system of administration.

“But in a country having a democratic system of Government such abnormal situation presents a
dilemma, because the assumption of any extraordinary powers by the Government must be in
derogation of the civil and political rights normally ensured to the citizens by the democratic
Constitution.

“A satisfactory solution of the problem can therefore be had only if extraordinary powers are
available to the Government to meet such emergencies with the least encroachment upon the
rights and liberties of the citizens.

In countries where a lawful Government or Constitution has not yet been established after a
revolution or a coup, Courts have upheld the exercise of emergency powers (including
preventive detention) by the de facto administration on the basis of a doctrine of „necessity, ...
“The principle of necessity or implied mandate is for the preservation of the citizen, for keeping
law and order……… regardless of whose fault it is that the crisis has been created or persists.‟

“It is „necessary‟ for avoiding a chaos or a vacuum. The existence of a Doctrine of Necessity‟
State or social order is necessary to protect the citizens themselves and to ensure their minimum
liberties or „human rights‟.

Limitation and Derogation

Derogations are only in exceptional circumstances, and only as far as the situation requires
and hence they are tentative whereas limitations are common to all right and permanent in
nature. In short, derogations are different form limitations in that they are often temporary and
may suspend a right wholly.
Various international, regional and domestic laws imposes obligation on the state to respect and
protect fundamental human right and freedom. Stated otherwise, government has the duty respect
and protect fundamental rights of its subject. Protecting and respecting these fundamental rights
of its subject is internationally and regionally recognized principle.

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
The same principle hold true in domestic law including our country Ethiopia. FDRE constitution
under its art 13(1) provides that “All Federal and State legislative, executive and judicial organs
at all levels shall have the responsibility and duty to respect and enforce the provisions of this
Chapter”. As per this provision, all organs of the government be it federal and regional are duty
bound to respect and enforce the provisions concerning fundamental right including the right to
life. Moreover, they are under the duty to ensure the observance of the constitution and the duty
to obey. In this respect, art 9(2) FDRE constitution stipulate that “state that all citizens, organ of
the state, political organization, other association, as well as their official have the duty to ensure
the observance of this constitution and obey it.”

However, none of these human rights are absolute and without limitation. Thus, none of human
right may be applauded without limitation and absolutely and hence, be restricted.

In accordance with international human rights law there are essentially two ways in which the
State put aside this international obligation. In other word, there are exceptional circumstance in
which state restrict fundamental rights of its citizen. These are limitation and. Derogations.

“These general „derogation‟ clauses must be distinguished from the „limitation clauses which
are appended to the Clause which guarantee the particular human rights, .. “In the context of
derogation, it should denoted that even during Emergency, some of the human rights cannot be
derogated form. These are mentioned in Art. 4(2) of the International Covenant and Art. 15(2) of
the Convention. These are called non-derogable rights ...
“Many Constitutions explain that „war‟ in the present context is not External aggression141
confined to a condition of actual warfare upon a formal declaration of war, but any form off
„external aggression‟ by which the security, or sovereignty of the State is affected or
threatened.”

Derogation and Limitation of human rights under international human right instruments

There are some exceptional circumstances that permit restrictions on human right. The most
common restrictions are limitation and derogation of human right. In this regard, different
international and regional human right instruments recognize these limitation and derogation
principles with different approaches. Nevertheless, the most persistent difficulty is having clear
distinction between limitation and derogation.

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
Derogations are only permitted in exceptional circumstances, when the “life of the nation is at
stake”, while limitations to rights may be made to serve certain legitimate aims.

Derogations are only in exceptional circumstances, and only as far as the situation requires and
hence they are tentative whereas limitations are common to all right and permanent in nature.

In short, derogations are different form limitations in that they are often temporary and may
suspend a right wholly. Limitations on the other hand may be permanent and are meant to
perpetually balance the public interest with the rights of individuals and groups; unlike
derogations, limitations cannot negate the essential element of a right. Moreover, there is no need
for emergencies to justify limitation of rights; but emergencies or crises are condition precedents
for the legitimate derogation from or suspension of rights.

Various international and regional human right instruments with the exception of African Charter
on Human and Peoples (AHPR) consists of principle of derogation of human right. Inter alia,
ICCPR under art 4(1) provide that…

“In time of public emergency which threatens the life of the nation and the existence of which is
officially proclaimed, the States Parties to the present Covenant may take measures derogating
from their obligations under the present Covenant to the extent strictly required by the
exigencies of the situation, provided that such measures are not inconsistent with their other
obligations under international law and do not involve discrimination solely on the ground of
race, colour, sex, language, religion or social origin.”

From the reading of this article, we can easily understand that derogation from human right itself
is not absolute. In other word, it cannot be claimed arbitrarily and Human rights can only be
derogated if and only if the circumstances warrants derogation are satisfied. These are 1. There
should be state of emergency that threatens the life of nation. The derogating state bear the duty
to prove the existence of emergencies that warrant derogation of human right. Nevertheless, the
extent of emergency must be determined case by case. 2. The exigency should be officially
declared by the competent organ of the state. Moreover, members of the United Nations
Organization are requested to inform the Secretary General, and the other bodies of the
organization, whenever a state of public emergency is declared, and to indicate the special and
temporary measures taken (ICCPR art 4(3) articulate “Any State Party to the present Covenant

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
availing itself of the right of derogation shall immediately inform the other States Parties to the
present Covenant, through the intermediary of the Secretary-General of the United Nations, of
the provisions from which it has derogated and of the reasons by which it was actuated. A further
communication shall be made, through the same intermediary, on the date on which it terminates
such derogation.”) 3. Proportionality; the state should take derogating measures to the extent
necessary to avert the emergency at hand. 4. Inconsistency with other international obligation.
The derogating measures should not contradict with other obligation state owed under
international laws. The derogating measures should be imposed with the purpose to avert the
exigencies that put the life of the nation at risk. 5. Non-discrimination. Derogating measures
should not involves discrimination of all nature based on race, colour, sex, language, religion or
social origin. 6. Non-derogable rights. This is most important derogation test. Few human rights
are not derogable even in a situation of public emergency. The human rights, which are
expressly declared non-derogable under the Covenant includes prohibition of torture, right to
life, freedom of conscious, religion and thought ‘under any conditions even for the asserted
purpose of preserving life of a nation.

Derogation of Human Rights and FDRE Constitution

The Ethiopian Constitution recognizes possibilities that warrant the suspension of protected
rights through ratification of international human right instruments and direct incorporation in
the constitutional provision. Many of international human right instruments to which Ethiopia is
party incorporate derogation principle. This principle has direct force of application via article
9(4) and 13(2) of FDRE constitution. As far as direct incorporation is concerned FDRE
constitution under art. 93 clearly incorporate principles of derogation of human right. This
derogation is not, however, without limitation and arbitrarily effected. Nevertheless, there are
substantive as well as procedural requirements that govern such emergencies. Besides, few rights
are not subject to derogation. Article 93 of the Constitution prescribes the requirements all these
things. The only conditions that may justify derogations are occurrence of an external invasion, a
breakdown of law and order that cannot be controlled by the regular law enforcement agencies
and personnel, or the occurrence of a natural disaster or an epidemic. The federal council of
minister has the power to declare it.

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
The Regional States are also allowed to declare state of emergency to avert natural disaster or
epidemic within their respective territories. The ultimate power to approve or annul a declaration
of emergency made by the Council of Ministers, however, lies with the House of Peoples’
Representatives (HPR). This decision is required to be made within 48 hours if the HPR is in
session or within 15 days if the HPR is not in session at the time of the declaration of emergency.

Upon approval by a two-third majority vote, the state of emergency may remain up to six months
subject to renewal for up to four months on each occasion through the same procedure.

Which human rights cannot be limited even in the event of a state of emergency? Certain
human rights are non-derogable under any circumstances. The ECHR and the ICCPR identify
these rights as follows:

 The right to life

 Prohibition of torture

 Freedom from slavery

 Freedom from post facto legislation and other judicial guarantees

 The right to recognition before the law

 Freedom of thought, conscience and religion

The UN Human Rights Committee has recognized that, in addition to the non-derogable
rights listed above, there are several other humanitarian provisions that must remain
inviolable.

Please compare the FDRE constitution provisions in line with these international agreements in
relation to non-derogaable rights? Is it in compliance with international conventions or not?
Why?

What essential principles must be respected during emergency rule?

A country’s constitution or legislation normally describes the circumstances that can give rise to
a state of emergency, identifies the procedures to be followed, and specifies limits on the
emergency powers that may be invoked or the rights that can be suspended. While each country
will want to define its own practices, international norms have developed that can provide useful

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
guidance. For example, important international treaties such as the European Convention of
Human Rights and Fundamental Freedoms (ECHR) and the International Covenant on Civil and
Political Rights (ICCPR) stipulate that states are to observe the following principles.

 Temporality: this refers to the exceptional nature of the declaration of a state of

emergency

 Exceptional threat: the crisis must present a real, current or at least an imminent danger
to the community

 Declaration: the state of emergency must be announced publicly; this informs citizens of
the legal situation and reduces the possibility of a de facto state of emergency, that is, a
situation whereby the state restricts human rights without officially proclaiming a state of
emergency

 communication: notification of the measures taken must be made to other states and
relevant treaty-monitoring bodies; for example, if a state is to derogate from its
obligations under the ECHR or ICCPR then it must inform the Secretary General of
respectively the Council of Europe or the UN of its derogation, the measures it has taken
and the reasons therefore, as well as the termination of the derogation.

 Proportionality: the measures taken to counter the crisis must be proportional to the
gravity of the emergency situation; this applies to the area of application, their material
content and their duration.

 legality: human rights and fundamental freedoms during a state of emergency must
respect the limits provided for by the relevant instruments of international and national
law; furthermore, a state of emergency does not imply a temporary suspension of the rule
of law, nor does it authorize those in power to act in disregard of the principle of legality,
by which they are bound at all times.

 Intangibility: this concerns the fundamental rights from which there can be no
derogation, even during times of emergency.

Limitation of Rights

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law
In democratic society all rights are not absolute. Some rights have limitations. For instance in the
FDRE constitution the following rights has limitations.

Article 15 right to life limited when committing serious crimes

Article 26 (3) Right to Privacy

Article 27(5) Freedom of Religion, Belief and Opinion

Article 29(7) Right of Thought, Opinion and Expression

Article 30 (2) the Right of Assembly, Demonstration and Petition

Freedom to express or manifest one's religion or belief may be subject only to such limitations as
are prescribed by law and are necessary to protect public safety, peace, health, education, public
morality or the fundamental rights and freedoms of others, and to ensure the independence of the
state from religion.

Prepared by Sileshi Walelign (LLB, LLM) Lecturer of Law at Injibara University School of Law