Collection of All Public Law Short Note Prepared by Yuunivarsiitii

1. Constitutional Law I 3 Cr.
hrs;
2. Constitutional Law II 3 Cr. hrs;
3. Federalism 2 Cr. hrs;
4. Criminal Law I 3 Cr. hrs;
5. Criminal Law II 3 Cr. hrs;
6. Employment and Labor Law 4 Cr. hrs;
7. Public International Law 3 Cr. hrs;
8. Human Rights Law 3 Cr. hrs;
9. Tax Law 3 Cr. hrs;
10.Administrative Law 3 Cr. hrs.
Short notes of (Hawassa University) /Collection of Public Law)

1
Chapter One constitution 1
Basic Conceptual Framework

1.1State as a Political and Juridical Concept
1.1.1 State as a Political Concept
constitution is a mechanism by, or a channel through which political power is converted
into an institution of the state, as a consequence of which power is structured. 5 Because
of the nexus between and among state, power and law, a constitution does not only
govern the relationship between the governed and the government (government
understood as the agency or machinery of the state), but also lays down the basis and
justification of state and government, as juridical concept and structure.
1.2 State as a Juristic Person
From the point of Political Science, the concept of state comprises three fundamental
elements
(1) a community of people,
(2) with a definite territory, and
(3) a political power.
1.2.1 Sovereignty
The capacity to monopolies on the use of force (state power) over a given political
community of within a given territory is known as sovereignty.
All states enjoy sovereign equality. They have equal rights and duties and
are equal members of the international community not withstanding
differences of an economic, social, political or other nature. 25 In particular,
sovereign equality includes the following elements:-26
a. States are judicially equal;
b. Each state enjoys the rights inherent sovereignty in full;
c. Each state has the duty to respect the personality of other states;
d. The territorial integrity and political independence of the state are
inviolable;
e. Each state has the right to freely to choose and develop its political,
social, economic and cultural systems;
f. Each state has the duty to comply fully and in good fully with its
international obligation and to live in peace with other states.
1.2.3.1 Forms of Sovereignty in International Law
There are six main forms of sovereignty:
a. Internal or Territorial Sovereignty

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our planet is legally divided into approximately 200 sovereign states. Within its own
territory, each of these states is exclusively sovereign, in the sense that it has “exclusive
competence” or “domestic jurisdiction” and the monopoly of power over its territory
and nationals.
b. External Sovereignty
The state is externally sovereign, in the sense that it is not subjected (against its will) to
another state or to any higher authority. International Law, however, imposes certain
limits to both the internal and external aspects of sovereignty of states. The most
important ones are formulated in the UN Charter and the 1970 Declaration on Principles
of International Relations.38 They include the obligation that states, in their international
relations, shall refrain from threatening or using force, oblige to co-operate with one
another, abide by the principles of equal rights and self-determination of peoples.
c. Sovereign Equality
All states are juridically equal, in the sense that, formally they have identical rights at
the international level.
Extraterritorial Sovereignty
In the 19th Century, some Asian and African states were forced to sign capitulation
treaties with European states, whereby European nationals and their property were
made immune from local authority and jurisdiction.
d. Permanent Sovereignty over Natural Resources
It is a well-established principle of International Law that every state can freely dispose
of the natural wealth and resources within its territory a principle which is commonly
known as permanent sovereignty over natural resources.
1.2.3.2 Sovereignty as a Dynamic Concept
The changes in the theory and practice of sovereignty, as they evolved in the past, are a
reflection of the changing functions attributed to sovereignty and the state in a given
period.
1.2.4 The Concept of Nationality
Nationality of an individual is his quality of being a subject of a certain state. Hence, it
is one of the attributes given to a physical person.
“Although it is for the international law of each state to determine who is and
who is not a national of the state2 it is nevertheless of legal and practical
interest to a certain how nationality can be aqcuired under such laws.
The five most common modes of aqcuiring nationality are
1. birth,2. naturalization, 3. Reintegration , 4.annexation and 5. cession.3

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According to this rule, every child2 born on the territory of such a state, whether
the parents be citizens or aliens becomes a national of such state, whereas a
child born abroad is foreign although the parents may be nationals.
1.2.5 Democracy and Constitutionalism
Constitutionalism enshrines respect for human worth and dignity as its central principle,
too. To protect that value, citizens must have a right to political participation, and their
government must be hedged in by substantive limits on what it can do, even when
perfectly mirroring the popular will. What constitutionalism insists on is having limited
government. Predictability of governmental actions is also a characteristic feature of its
typology.
1.2.5.2 Constitutionalism
Constitutionalism, therefore, pertains to two kinds of relationships. The relationship
between government and nationals/citizens, residents/ is the first category – the
substantive. The second (the formal) refers to the appraisal of one branch of
government vis-à-vis the other; and to their inter-relationship. It is these two aspects of
constitutionalism which are the quit-essentials of a constitution, be that written, rigid,
flexible, etc…
Constitutionalism and democratic theory raise questions about the concept of a
constitution and the relationship of any particular constitution to those theories
1.2.5.3 The Concept of “Constitution”
A constitution as sham/cosmetic or real, has a principal function.
A Constitution as a Charter for Governments:54At minimum, an authoritative
constitutional text would more often sketch the fundamental modes of legitimate
governmental operations.
A constitution as a guardian of fundamental rights:
The constitution as covenant, symbol, and aspiration: In so far as a constitution is a
covenant by which a group of people agree to (re) transform themselves from mere
state into a nation,
 , a constitution may serve as a binding statement of people’s aspirations for
themselves as a nation. A text may silhouette the sort of community its member
would like to become: not only their governmental structures, procedures, and basic
rights, but also their goals, ideals, and the moral standards by which they want
others, including their own posterity. In short, a constitutional text may guide as well
as express hopes for peoples themselves as a society. The ideals, the words
enshrined in their constitutions, the processes they describe and the actions they
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legitimize must either help to change the citizenry or, at least, reflect their current
values.
1.2.6 Rule of Law
These identified eight elements of law, recognized as necessary for a society aspiring to
institute the Rule of law state as follows:-
1. Laws must exist and those laws should be able to win obedience.
2. Laws must be published.
3. Laws must be prospective in nature so that the effect of the law may only take
place after the law has been passed. Laws should be written with reasonable
clarity to avoid unfair enforcement.
4. Law must avoid contradictions. (intelligibility)
5. Law must not command the impossible. ( Non self-contradictoriness)
6. Law must be general.
7. Laws must stay constant through time to allow the formalization of rules;
however; law also must allow for timely revision when the underlying and
political circumstances have changed.
8. Official action should be consistent with the declared rule. (Congruency)
A. Important Components of Rule of Law Reforms
I. Court Reforms
To increase independence of the courts, the government can provide them with funding
that will allow them to make their own financial and administrative decisions.
Furthermore, for countries that have already established these structural reforms to
encourage the adoption of the rule of law, court performance should be evaluated on a
periodic basis.
II. Developing Legal Rules and Legal Systems
 Another important goal for rule of law reform is to develop the legal rules first and
fore- most as Fuller stated, “law must exist”, before one begins to talk about rule of
law
The very term Rule of Law suggests that the law itself is the sovereign, or the ruler, in a
society.
Chapter II
Creating Paradigms of State
 The constitutional politics cannot possibly be understood without reference to the
respective and related histories.

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 Greek constitution gave political philosophy and its inspiration opened men’s minds to
the finer purpose of political organization.
 Roman constitutionalism gave western world the reality of law and the ideal of unity.
Feudalism bridged the gulf between the chaos following the fall of the Roman Empire
in the west and the emergence of the modern state.
 The progress of centralization through the crown in England, France and Spain during
the Middle Ages was necessary to destroy the evils of feudalism and to lay the
foundations of a national policy, while the growth of partially representative institutions
in those countries marked in Western Europe the first faint beginnings of the democratic
state.
 The Renaissance carried forward the centralizing process in the west of Europe and
planted yet more securely the seed of nationalism there.
 English constitutionalism supplied a continuity of life to liberal institutions through
many centuries where they were dead or had never lived, permitted the growth of its
own institutions among those communities in all parts of the world of which England
herself was the mother and supplied the pattern of a constitution when the moment
came for any newly-liberated community to found one.
 The American and the French Revolutions gave the modern world the first examples
of documentary constitutions, thus finding an immediate way of reconciling liberty and
authority, the rights of man and organized movement.
 The 19th century saw the ideals of liberal reform and nationalism struggling for
recognition, and their partial retaliation in political forms.
 The industrial Revolution intensified both nationalism and constitutional reform, first
by fostering the policy of economic protection and then by extension of the franchise
and the organization of national parties.
 The first World War gave a tremendous incentive to constitutionalism by destroying
the illiberal governments, by creating new states out of hitherto oppressed nationalities,
by establishing constitutions on the basis of nationalism and democracy and finally by
creating the will to international peace of constitutional lines through the establishment
of the League of Nations.
 But in the succeeding years there was a violent reaction against political
constitutionalism, and the Russian Revolution of 1917 was followed by the fascist out
break in Italy, the Nazi upheaval in Germany, and the victory of Franco over the
Republicans in Spain, while the nations of Eastern Europe generally tended under Nazi
and Fascist influences, to sacrifice the constitutional safeguards they had so recently
won. The Second World War left a complex and menacing situation for the national
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democratic constitutionalism of the west which has to meet not only the challenge of
communism but the danger of a resurgence of fascism and the incalculable effects of
emergent Afro Asian nationalism.
 The second fact which should emerge from this sketch is that national democratic
constitutionalism, ancient though its origins may be, is still in an experimental stage and
that if it is to survive in competition with more revolutionary types of government, we
must be prepared constantly to adopt it to the ever-changing conditions of modern
society.
 The basic purpose of a political constitution is, after all, the same whatever form it
takes to secure social peace and progress, safeguard individual rights and promote
national well-being.
2.2 Developments in Ethiopia
2.2.1 Attempts in Developing the Ethiopian Nation-State
A. The Nobility
the existence of the “Mekuanent” and the “Kahenat” (the nobility and the clergy,
respectively) was, likewise, upheld as another significant factor for the maintenance of
the status quo. The class of nobility consisted of the royal nobility, their power was all
encompassing with respect to the particular material and local jurisdiction.
B. The Church
Constitutionally, church and state were, in form and in essence, one and the same thing
in traditional Ethiopian polity. Their respective source of authority was different. The
king’s authority emanated from Solomoic, king David and Jerusalem,
The Emperor and the church working together “provided the unifying elements which
continually countered the centrifugal forces of geography, ethnicity and aristocracy”.28
2.2.2.1 The 1931 Constitution: the Japanese Paradigm
The Emperor had the prerogative to determine the organization of all organs of
administration, pursuant to which the cabinet6 headed by the prime Minister was
appointed by the Emperor on the advice of elder statesmen. Judicial authority was, in
similar manner, vested in the sovereign power of the Emperor.
2.2.2.2 The 1955 Revised Constitution: the Westminster Paradigm and the
Aborted Reform thereof
“the sovereignty of the Empire is vested in the Emperor and the supreme authority over
all the affairs of the Empire is exercised by himas a Head of state, in the manner
provided for in the present constitution”14

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The legislative body was bi-cameral: Senatorswere appointed from the nobility and a
few from the commons for their meritorious achievements, while the Deputies were
directly elected from equally populated constituencies.
The judiciary was appointed by the Emperor, subject to a special law, which was yet to
come and which was supposed to regulate manner of selection, tenure, appointment and
dismissal.
Finally, the constitution was declared to be the supreme law of the Empire and as such,
acts or enactments which were found inconsistent with the constitution were rendered
null and void.
2.2.2.3 The 1974 Revolution and the 1987 Constitution: the Soviet Paradigm
Rural and urban lands were nationalized. All production and distribution, private
enterprises, including rental houses were brought under the ownership and control of
the state. The Emperor, along with ministers, governors, the high nobility and the top
brass were executed, the rest were detained. Red Terror was unleashed against
opposition and even against individual dissenters. In short, the Russian model of
revolution and socialism were in the making; what made different the Ethiopian case
was that military dictatorship was combined
Judges were elected, recalled and dismissed by the parliament and more interestingly
the term of their office was made to be congruent with that of the parliament. Although
judges were in those days, as in the past, to be guided by “no other authority than the
law”, it was clear more than over before that the judiciary was under the double yoke of
the executive and the parliament. On top of this socialist legality required the
construction of laws in accordance with “revolutionary legal consciouness”. 64
Unfortunately, revolution knows very little of law.
The constitution does not merit so much discussion because it was dead well before it
was born
2.2.2.5The Transitional Charter: A Prelude to Federalism
The Transitional Period Charter has completely changed the structure of the State, i.e.,
from a unitary to a federal structure. Although there was no mention of federal
arrangement in the Charter.
The Transitional Period Charter came to force immediately after the downfall of the
P.D.R.E. The Charter declared that the provisions of the Universal Declaration of
Human Rights were respected fully.
a new chapter in Ethiopia in which freedom, equal rights and self-administration of all
the peoples shall be the governing principles of political, economic and social life. The

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Charter also guaranteed each nation, nationality and peoples the right to administer its
own affairs within its own defined territory and effectively participate in the central
government on the basis of freedom, and fair and proper presentation.
Chapter Three
3.1. Making a Constitution
To start with, it is a truism that countries make a new constitution when they wish to
make a fresh start, mostly for compelling political reasons. This can be evidenced from
the fact that the making of a new constitution or amendment of the existing ones
usually, if not always, involves a significant re-allocation of political or other powers.
In hierarchical polities, constitution making is essentially a process of handing down a
constitution from the top, the way medieval kings granted charters.
In organic polities, the process of constitution making is also an organic one, consisting
of a series of acts negotiated among the established bodies that share in the governance
of the polity.
In such polities constitutions are rarely written and are even more rarely replaced.
Rather constitutional making and change come in bits and pieces - on a gradually basis.
The New World Experience
Covenant, Compact, Contract
Covenants can bind any number of partners for a variety of purposes, but in their
essence they are political in that their bonds are used principally to establish bodies
political and social.
Covenant is tied in an ambiguous relationship to two related terms, compact and
contract. On the one hand, both compacts and contracts are derived from covenant, and
sometimes the terms are even used interchangeably. On the other hand, there are very
real differences between the three which need clarification.
Both covenants and their derivative, compacts, differ from contracts in that the first two
are constitutional or public and the last private in character.
As such, covenantal or compactual obligations are broadly reciprocal. Those bound by
one or the other are obligated to respond to one another beyond the letter of the law
rather than to limit their obligations to the narrowest contractual requirements.
Hence, covenants and compacts are inherently designed to be flexible in certain
respects as well as firm in others.
As expressions of private law, contracts tend to be interpreted as narrowly as possible
so as to limit the obligation of the contracting parties to what is explicitly mandated by
the contract itself.

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A covenant differs from a compact in that its morally binding dimension takes
precedence over its legal dimension. In its heart of hearts, a covenant is an agreement
in which a transcendent moral force, traditionally God, is a party, usually a direct
party, to or guarantor of a particular relationship; whereas, when the term compact is
used, a moral force is only indirectly involved. A compact, based as it is on mutual
pledges rather than the guarantees of a higher authority, rests more heavily on a legal
though still ethical grounding for its politics.
In other words, compact is a secular phenomenon. This is historically verifiable by
examining the shift in terminology that took place in the seventeenth and eighteenth
centuries.
the distinction is not always used with strict clarity, it does appear consistently.
3.2. What a Constitution should contain
since the major purpose of a constitution is to establish themain organs of a
government and
ensure appropriate power division among them and
also to control the exercise of governmental power , especially as affects the
rights and interests of individual citizens and those of different communities in a
multiethnic community,
the constitution is supposed to set standards against which governmental
actions could be measured.
It should also reflect or take good account of the country’s geography and history, its
legal system, and existing form of government and the culture of the people. Is the
country homogeneous or multi-ethnic? What are the units of social organization and the
importance given to customary rights? And how are individual rights reconciled with
group rights? are few of the questions that need to be addressed by the constitution?
3.3. Status of International Instruments under Ethiopian Constitutional
Framework
 Under this topic we will try to locate the place of international agreements to
which Ethiopia is a party in the hierarchy of laws in Ethiopia. Pursuant to Art
9(4) of the FDRE constitution, international agreements ratified by Ethiopia
make an integral part of the law of the land.
 In fact, some people argue that international treaties are not laws, despite
ratification, unless they are published in the federal Negarit Gazette by virtue of
Art 71(2) of the FDRE constitution.

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 But this agreement doesn’t hold water as what is stated in this specific sub article
is not to be taken as having an effect of rendering international treaties not
published in the Negarit Gazette invalid.
 This is because the provision doesn’t clearly state that international treaties will
not become laws unless published.
 It only tries to indicate the formal requirements, the non-fulfillment of which
doesn’t necessarily render that particular instrument non-binding as much as the
failure and/or refusal of the president to put his signature on the draft bill doesn’t
stop it from becoming a binding law.
 Moreover, as states cannot invoke their laws as defense for failure to conform to
international commitments they have entered into, adhering to the earlier
arguments would not take us any further since ratification alone would elevate
their status from mere agreements to binding laws.
 Thus, it would be naive to argue that these treaties do not have binding effect for
they are not published in the federal Negarit Gazette as the latter is no more than
a matter of formality.
 Coming back to the main issue at hand, can we say, as international treaties to
which Ethiopia is a party will arguably become part and parcel of the law of the
land once ratified by an organ authorized to do so, i.e., the House of Peoples’
Representatives16, that they will have greater or equal status with the
constitution? To put the question differently, if international instruments are
regarded as part and parcel of the law of the land, what is their hierarchy in the
Ethiopian legal system?
 To begin with, it is provided under Article 9(1) of the FDRE constitution that the
constitution is the supreme law of the land and any law (emphasis added)
contradicting with the constitution is null and void.
 As international agreements which are ratified by Ethiopia will become an
integral part of the law of the land by virtue of Article 9(4) of the constitution and
the phrase “any law” in sub-article 1 of Article 9 includes international treaties,
one can have the audacity to conclude that international treaties are subordinate
to the constitution as much as other subsidiary legislations are.
 But, it is provided in Article 13(2) of the FDRE Constitution that the third
chapter shall be interpreted in a manner conforming to (emphasis added) the
principle of the Universal Declaration of Human Rights, International
16

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Conventions on Human Rights and international instruments adopted by
Ethiopia.
 What one can discern from the above article is that international instruments are
not always subordinate to the constitution, at least, partly. Pursuant to the
aforementioned article, where never there arises the need for interpretation of any
of the provisions under the third chapter of the constitution, resort should be
made to relevant international instruments such as the UHDR and other human
rights instruments to which Ethiopia is a party.
 Thus, as long as the application of any of the provisions under the third chapter of the
constitution meshes well with the spirit of those international instruments and there is
no need for interpretation, all international instruments ratified by Ethiopia are
subordinate, in hierarchy, to the constitution.
Chapter Four
Making paradigm of Constitutions by Classifications
4.1. Classification of Constitution
4.1.1. By looking at the Nature of the Constitution itself: Traditional approach
4.1.1.1. Written /unwritten, codified/uncodified
What is meant by a written constitution is, therefore, one that is reduced into a form of a
document having special sanctity. The term written constitution shows complete single
document.
Unwritten constitution on the other hand is one which has grown up on the basis of
custom rather than of written law. It is found in different documents.
4.1.1.2. Rigid/flexible, Conditional/unconditional Classification
if the amendment or alteration procedure of a constitution is not made to depend on
some conditions or special procedures, then it may be called flexible constitution.
If some conditions or a special procedure has to be met before the amendment of a
constitution, then it is a rigid constitution.
Thus, flexible constitutions have elasticity as they can be bent and altered in form
without any need to fulfill some conditions while retaining their main features. Rigid
constitutions, on the other hand, are those whose lines are hard fixed.
4.1.2. By looking at the Nature of the State itself: Federal/Unitary classification
In a federal constitution, powers of governments are divided between government for
the whole and governments for parts of the country in such a way that each government
is independent and none is subordinate to the other, and legislature in both cases have
limited powers.

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In a unitary constitution on the other hand, the legislature of the whole country is the
supreme law-making body and it has the mandate to allow other legislatures to exist and
exercise their powers while reserving the right to overrule them as they are subordinate
to it.
4.1.3. By looking at the nature of the Government itself:
Presidential/Parliamentary Classification and Republican/Monarchical
Classification
4.1.3. 1. Presidential/Parliamentary Classification
 If the executive is immediately answerable to the parliament, then it can be called
parliamentary executive.
 But if it is immediately responsible at definitely arranged intervals to some wider body
and is not amenable to removal by the action of the legislature, then it is called
presidential executive.
 Differently stated, in constitutions that provide for presidential executive, there is a
rigid separation of institutions from the bottom upwards. Hence the president and his
subordinates may not sit in the congress (legislature).
 In constitutions that prosvide for parliamentary executive, although the great majority
of the members of the executive (civil servants and office holders) are excluded from
the parliament, the heads of department and ministers may sit in the parliament and
hence may be accountable to the parliament.
4.1.3.2. Republican/Monarchical Classification
 where the head of state is a president, then that state is a republic,
 where the head of state is a king, that state is a monarchy or a kingdom.(i)
4.1.4. By looking at the Legislature
4.1.4.1. Unicameral/Bicameral/Tricameral/Tetracameral
(i) Unicameralism
Unicameralism is the practice of having only one legislative or parliamentary chamber.
Many countries with unicameral legislatures are often small and homogeneous unitary
states and consider an upper house or second chamber unnecessary.
Unicameral legislatures were and are also common in Communist (like People's
Republic of Poland, People's Republic of China and Cuba) and former Communist
states (like Ukraine, Moldova and Serbia),
(ii) Bicameralism
For example.the upper house would have states represented equally, and the lower
house would have them represented by population.

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(iii) Tricameralism
Tricameralism is the practice of having three legislative or parliamentary chambers. It

is contrasted to unicameralism and bicameralism, both of which are far more common.
The term was used in South Africa to describe the Parliament established under the
apartheid regime's new Constitution in 1983. Other instances of tricameral legislatures
in history include Simón Bolívar's model state. The word could also describe the French
States-General, which had three 'estates'.
South African tricameralism
The South African tricameral parliament consisted of three race-based chambers:
 House of Assembly — 178 members, reserved for whites
 House of Representatives — 85 members, reserved for Coloured, or mixed-
race, people
 House of Delegates — 45 members, reserved for Asians
(vi) Tetracameralism
Tetracameralism (Greek tetra, four + Latin camera, chamber) is the practice of having
four legislative or parliamentary chambers. It is contrasted to unicameralism and
bicameralism, which are far more common, and tricameralism, which is rarely used in
government.
Medieval Scandinavian deliberative assemblies were traditionally tetracameral, with
four estates; the nobility, the clergy, the burghers and the peasants. The Swedish and
Finnish Riksdag of the Estates maintained this tradition the longest, having four
separate legislative bodies.
4.1.4.2. The Upper House
An upper House is one of two chambers of a bicamerallegislature, the other chamber
being the lower house.
(i) Features
An upper house is usually distinct from the lower house in at least one of the following
respects:
 It is given less power than the lower house, with special reservations, e.g. only
when seizing a proposal by evocation, not on the budget, not the house of reference for
majority assent.
 Only limited legislative matters, such as constitutional amendments, may require
its approval.
 'Houses of review', in that they cannot start legislation, only consider the lower
houses' initiatives. Also, they may not be able to outright veto legislation.

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 In presidential systems, the upper house usually has the sole power to try
impeachments against the executive following enabling resolutions passed by the
lower house.
 Composed of members selected in a manner other than by popular election.
Examples include hereditary membership or Government appointment.
 Used to represent the states of a federation.
 Fewer seats than the lower house (or more if hereditary).
 If elected, often for longer terms than those of the lower house; if composed of
peers or nobles, they generally hold their hereditary seats for life.
 Elected in portions for staggered terms, rather than all at once.
4.1.4.3. Lower House
A Lower House is one of two chambers of a bicamerallegislature, the other chamber
being the upper house. Despite its theoretical position "below" the upper house, in many
legislatures worldwide the lower house has come to wield more power.
The supremacy of the lower house usually arises from special restrictions placed (either
explicitly by legislation or implicitly by convention) on the powers of the upper house,
which often can only delay rather than veto legislation or has less control over money
bills.
Under parliamentary systems it is usually the lower house alone that designates the
head of government or prime minister, and may remove them through a vote of no
confidence. There are exceptions to this however, such as the Prime Minister of Japan,
who is formally selected with the approval of both houses of the Diet. A legislature
composed of only one house is described as unicameral.
Common attributes
In comparison with the upper house, lower houses frequently display certain
characteristics:
 Given greater power, usually based on restrictions against the upper house.
 Directly elected (apportionment is usually based on population).
 Given more members.
 Elected more often, and all at once.
 Given total or original control over budget and monetary laws.
 Able to override the upper house in some ways.
 In a presidential system, given the sole power to impeach the executive (the
upper house then has to try the impeached.
4.1.5. By looking at the nature of the Executive
4.1.5.1. Monosepalous Executive

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 The best typology in this respect is the kind of executive we find in Britain
parliamentary or cabinet form of government (executive).
 The Prime Minister is not a mere spokesman of the Council of Minster, but its
leader. As a leader, it is the Prime Minister who determines the agenda of the
Council of Ministers. This means the power to determine the priority of
governmental action at any one time is in his hands.
 It’s the Prime Minister who initially organizes the Council of Ministers,
 In addition to this, the Prime Minster is assisted by numerous experts of various
professions in the office of the secretariat
 4.1.5.2. Bicephalous Executive
The 1958 reformulated constitution of France has created an executive with two heads,
i.e. the President and Prime Minister. The President is elected for seven years and has a
lot of executive power.
The Prime Minister, on the other hand, is appointed by the president for five years.
The president is required to appoint the Prime Minister who owns the largest vote.
Thus, the Prime Minister owes his position primarily to electorates which makes him a
contending power owner.
4.2. Reflections on the Ethiopian Constitution
 in traditional Ethiopia, no written constitution in the modern sense of the term
formed the basis for constitutional process.
 Fetha Negest, which regulated the secular and religious aspects, the Kibre Negest
which served the politico - religious needs of the day, the Serate Mengist of the
nineteenth century which provided for certain administrative matters and protocol
directives useful to the constitutional process.17
 Thus, we can say that Ethiopia had no written constitution prior to 1931. But this
doesn’t signify, as per our discussion on written/unwritten constitution dichotomy,
the absence of a constitution as Ethiopia had a sophisticated traditional unwritten
constitution.18
 Those unwritten constitutions embraced the ideals of monarchy, an imperial court
system involving monarchy, the church, and the nobility, in an complicated power
relationship.19
 That succession to the throne hinges on two requirements-dynastic (Solomonic
dynasty) claim and the monarchy’s profession of the Orthodox Christian faith (the
17
18
19

16
requirement of anointment by the church) - is sufficient proof for the existence of an
unwritten principle (constitutional in essence).
 We can also cite several other traditional constitutional principles such as the office
of the Abun (head of the Ethiopian Orthodox church), male succession to the throne
etc are proof enough for the existence of traditional (unwritten) constitution.
 The constitution institutionalizes the ministerial system wherein collective and
individual ministerial responsibilities resided in the person of the emperor
thereby rendering the centralization of power inevitable.
 When we come to the judiciary, the 1931 constitution belongs to the second
category, i.e., the prerogative state in which the executive is under the protective
shield of a special system of administrative law, as the constitution in its Art. 54,
clearly states that suits related to administrative affairs are entertained by a
special court staffed by judges withdrawn from the jurisdiction of other courts.
 More or less, we can say the same thing about the 1955 constitution except that
the country adopted a federal form of government as of the federation of Eritrea
to Ethiopia by the resolution of the UN General Assembly on the 2 nd of Dec.
1950.
The 1987 PDRF constitution is also written and codified constitution rendering the
country a unitary state in which all nationalities live in equality.20
 The constitution had conferred ultimate state power on the National Shengo and its
Standing Council.
 It also endorses a unicameral parliament.
 a three fourth majority decision of members of the National Shengo has to be
obtained in order to amend the constitution.
 Coming back to the 1995 FDRE constitution, in much the same way as its
predecessors, this constitution is a written and codified document having 106
articles.
 Just like the PDRE constitution, the incumbent constitution provides for a republican
form of government although the former provides for a unitary single-party system
and the later provides for a federal multi-party system.
 The 1995 constitution establishes a parliamentary democracy .21 The constitution
also provides for a bicameral/two-chamber parliament, namely the House of
20
21

17
Peoples’ Representatives and the House of Federation both of which are federal
houses.
 It also provides for a one chamber State Council at State level which is the highest
organ of State authority as much as the House of Peoples’ Representatives is the
highest authority of the federal government.
 The other chamber, i.e., the House of Federation which is composed of

representative of nations, nationalities and peoples is entrusted with the power to
interpret the constitution and to decide on serious constitutional concerns such as the
right to secession.
 When we come to the amendment procedure of the constitution, we find it to be a
rigid constitution as it puts in place a stringent requirement for amendment.
Chapter Five
Forms of Government and Electoral systems
Generally, there are two forms of governments: these are presidential and Parliamentary
forms of governments.
5.1.1. The presidential system
 The presidential system, also called the congressional system, is a system of
government where an executive branch exists and presides (hence the name
presidential) separately from the legislature.
 Under this political system the president is both the Head of State22 and the Head
of Government.23
 Thus in the presidential system, the president is said to enjoy a direct mandate from
the people and hence is not accountable to the parliament and the latter cannot
dismiss him have on exceptional grounds through a process known as
impeachment.24
5.1.1.1. Features
 Although presidential governments in different countries have certain differences,
nearly all presidential systems share the following features.
 In a presidential system, there is no distinction between the positions of the Head
of State and Head of Government both of which are held by the president.
 That is, the president is the Head of State and the Head of Government and hence
the chief executive.
22
23
24

18
 He has the mandate to administer the country and appoint or remove executive
officers and thus can effectively control government department.
 Heads of government departments, ministers, commissioners, or secretaries are
under the president.
 The president enjoys ultimate power decision and, therefore, has complete political
responsibility for all executive actions.
 In such systems the president appoints secretaries who are heads of his executive
departments. In other words, the executive branch is uni-personal. Members of the
cabinet25 serve at the pleasure of the president and must carry out the policies of the
executive and legislative branches.
 In presidential system, the executive branch, headed by the president, is distinct
from other branches of the government which are all independent from one
another.
 This separation of power serves to check and balance the powers of the three
branches of government.
 While members of the legislature are elected, the members of the cabinet are
appointed by the president and may require the confirmation or consent of the
legislative branch.
 The president has a fixed term of office/tenure and his government has a fixed
tenure. Thus, he cannot be removed or dismissed from office before the expiry of his
term unless under highly unusual and exceptional process of impeachment.26
 the president can be removed from office only through death, resignation, inability
to discharge his responsibilities, or by congressional impeachment and conviction on
charges of treason, bribery, or other serious crimes.
 The president could be elected directly by the people or by an electoral college, a
system of electing a president or another representative or leader by a group of
persons who are elected from the people for the purpose of electing the president or
another leader.
 The president is not accountable to the legislature . Instead, he is accountable to the
constitution. Presidential governments make no distinction between the positions of
head of state and head of government both of which are confided in the person of the
president.
5.1.1.2. Merits and Demerits
 Merits
25
26

19
 The first advantage of presidential government is the fact that the executive is
stable by virtue of a fixed term. Since the existence of the executive doesn’t depend on
parliamentary whim, it is more stable than a prime minister (in parliamentary form of
government) who can be dismissed at any time.
 By way of making more than one electoral choice, voters in presidential system
can more accurately indicate their policy preferences. In the United States, for instance,
some political Scientists interpret the late cold war tendency to elect a Democratic
Congress and a Republican President as the choice for a Republican foreign policy and
a Democratic domestic policy.
 The existence of separation of powers is another advantage of this system.
 The other advantage of this system is that the president can recruit ministers
of highest caliber as he can appoint his ministers from people who do not belong to the
legislature. This is so because the president selects persons of greater competence and
integrity without any need to make political considerations or party affiliations.
(ii) Demerits
 Although the president’s fixed tenure has its own advantages, it has
disadvantages as well because it brings with it the difficulty in removing an
unsuitable president from office before his/her term has expired.
5.2. Parliamentary System
parliamentarism, is a system of government in which the executive is dependent on the
direct or indirect support of the legislature
 A parliamentary system of government is a government that is led by a party or a
coalition of parties that has the largest number of seats in the parliament.
 Absence of clear-cut separation of power between the executive and the
legislative is the main characteristic of this system.
 They usually have a distinct heads of state and head of government,
 the parliamentarianism does not necessarily imply multi-party arrangements are
usually the outcomes of an electoral system known as proportional Representation.27
(i) Features
 In parliamentary systemit is the prime minister who has effective control over the
executive as he is the chief executive. He/she deals with the day-to-day political
activities.
 The head of state, on the other hand, has such roles as symbolic role, chief
diplomatic officer, nominal chief executive officer, chief appointments officer,
27

20
legislative role (formality-signing on bills passed by the legislature), and other
prerogative such as pardon/amnesty and granting various titles and other honors.
 In parliamentary system, ministers are members of the parliament although not
the case in all countries..
 a political party or coalition of parties, as the case may be, which has the largest
seat in the parliament will constitute a government.
 The leader of the party which has won the majority seat in the parliament will
become a prime minister and the latter would, then, form his/her cabinet by nominating
either from among the parliamentarians or from outsiders whom he believes are
competent enough to discharge their responsibilities.
 In the parliamentary system, the government has no fixed tenure
 But this is a very rare occurrence as party discipline is very strong in this system
although the executive is answerable to the parliament.
 The executive in a parliamentary system is responsible to the legislature: the
legislature conducts control over the executive’s function nearly on a day-to-day basis.
 Members of the council of ministers may be required to report, respond to
questions, etc... to the legislature whenever they are requested to do so.
5.1.2.2. Merits and Demerits
(i) Merits
 The executive is better placed to execute the legislations passed by the House and
deliberations are not stringent as the ministers can effectively influence the course of
the discussion.(EASE OF LEGISLATION)
 This system, therefore, is preferable for countries with an infant democracy as it

allows coordination of the executive and the legislative which could in turn result in an
effective implementation of the programs and policies of the executive.
 it is a lot easier to pass legislations; this is because the executive branch is
dependent upon the direct or indirect support of the legislative branch and often
includes members of the legislative.
 On top of the ease for quicker legislative action, parliamentarianism has attractive
features for nations that are ethnically, racially, or ideologically divided.
 In presidential system, all executive power is vested in the president. In

parliamentary system, however, with a collegial executive, power is more divided.

21
(ii) Demerits
 The fact that the Head of Government is not directly elected is one of the
critiques staged against this form of government.
 parliamentary system, unlike the presidential system where the president is
elected by the public, the prime minister is elected by the legislature often under strong
party influence.
 Absence of clear distinction /separation of power between the executive and the
legislative is another criticism.
 In other words, lack of inherent separation of powers places too much power in
the executive.
5.2. Electoral systems

5.2.1. Meaning and features of election
An election is a decision making process by which a population chooses an individual
to hold formal offices. It is the usual mechanism by which modern democracy fills
offices in the legislature, sometimes in the executive and judiciary, and for regional and
local governments.
According to Jean Kirkpatrick, scholar and former United States Ambassador to the \
United Nations, “Democratic elections are not merely symbolic….. they are
competitive, periodic,inclusive, definitive elections in which the chief decision makers
in a government are selected by citizens who enjoy broad freedom to criticize
government, to publish their citizens’ criticism and to present alternatives.
5.2.2. Types and Features of Electoral systems
5.2.2.1. Majoritarian Representation systems
This is the oldest and simplest electoral system, in which a candidate in whose favor a
majority of votes are cast is returned to office. There are many variants of the
Majoritarian system, the most prominent of which is simple majority (relative majority)
also known as First Past the Post (FPP) and Absolute Majority.
The term First Past the Post was coined as an analogy to horse racing, where the winner
of the race is the first who gets past a particular point on the track and the rest runners
automatically and completely lose the race.
In the case of absolute majority, however, a candidate will be declared a winner only if
he/she gets an absolute majority of votes (50 percents +).
If there is no candidate that has met this minimum requirement, a second round is held
between the two candidates who get the highest number of votes and the one who gets
the least number of votes will be excluded.
22
5.2.2.2. Proportional Representation system
 Under Proportional Representation, political parties or candidates will have the
percent of seats that reflect their support.
 Proportional representation has such advantages as greater voter turn-out (typically
70-80%) owing to the more choices for voters which in turn lead to more diverse
representation,
5.3. Reflection on the Ethiopian Legal Regime
 Although Ethiopia had written constitution as early as 1931, members of two
chambered parliament established by the constitution did not assume their seats by
election.
 Members of the upper chamber- the senate were handpicked/appointed by the

emperor from among the nobility (mekuanint) and local chiefs (‘shumoch’) who
served the empire as ministers, judges or military officers. Members of the lower
chamber, on the other hand, were elected by the nobility and local chiefs.
 It was only in 1955 that the idea of election was introduced by the revised
constitution as members of the lower chamber begun to assume seats through
election. Since the coming into existence of the revised constitution, various laws
meant to regulate the country election procedure were issued.
 The first electoral law was issued on the 27th day of August, 1956. This law
established a National Board for registration and elections and determined the
powers and duties of the Board.
 Finally, when we come back to the system of election followed by Ethiopia, we find
on Art. 13 of the Proclamation that:
1. Any election shall be based on free, direct, and popular suffrage.
2. A candidate with more votes received than that by other competitors within the
constituency shall be declared the winner.
 What one can easily discern from the reading of sub Article 2 of the above article is
that the proclamation endorses the First-past-the-post system of election where in a
candidate with plurality of votes will be returned to office.
Chapter Six
Making the Constitution Adjustable
6.1. Interpretation of a Constitution
6.1.1. Methods of Constitutional Interpretation

23
Most legal scholars recognize six main methods of interpretation: textual, historical,
functional, doctrinal, prudential, equitable, and natural, although they may differ on
what each includes, and there is some overlap among them.
1. Textual. Meaning of words may be ascertained by associated words.
2. Historical. No one can properly understand a part until he has read the whole.
3. Doctrinal. Decision based on the prevailing practices or opinions of legal
professionals, mainly legislative, executive, or judicial precedents, according to the
meta-doctrine of stare decisis, which treats the principles according to which court
decisions have been made as not merely advisory but as normative.
4. Prudential. Decision based on factors external to the law or interests of the parties in
the case, such as the convenienceof overburdened officials, efficiency of governmental
operations, avoidance of stimulating more cases, or response to political pressure.
5. Equitable. Also called ethical. Decision based on an innate sense of justice, balancing
the interests of the parties, and what is right and wrong, regardless of what the written
law might provide.
Some scholars put various balancing tests of interests and values in the prudential
category, but it works better to distinguish between prudential as balancing the interests
and values of the legal system from equitable as balancing the interests and values of
the parties. Equity is a sort of perfect reason which interprets and amends written law;
comprehended in no code, but consistent with reason alone.
6. Natural. Decision based on what is required or advised by the laws of nature, or
perhaps of human nature, and on what is physically or economically possible or
practical, or on what is actually likely to occur.
1. Rights and powers are complementary. Every right recognized by the Constitution is
immunity, that is, a right against a positive action by government, and is equivalent to a
restriction on delegated powers. Conversely, every delegated power is a restriction on
immunities. An immunity may be expressed either as a declaration of the right, or as a
restriction on powers.
2. Original "intent" is functional, not motivational. The private motives of the
framers or founders are irrelevant and largely unknowable, and likely to have been
diverse.
The common law rule of interpretation understood by the founders was to discern the
functional role of elements of the law, not the private purposes of the lawgivers.
3. The ratification debates are the best evidence of original understanding. The
arguments of those opposed to ratification are not just the positions of the losers in the

24
debates, which some might dismiss as not indicative of original understanding. As the
debates proceeded, understandings evolved and clarified, and positions changed.
4. Powers are narrow, rights broad. The entire theme and tenor of the ratification
debates was that delegated powers were to be interpreted as strictly as possible,
consistent with the words and rights as broadly as possible, with the presumption in
favor of the right, and the burden of proof on those claiming a power. Potestas stricte
interpretatur. A power is strictly interpreted. In dubiis, non præsumitur pro potentia. In
cases of doubt, the presumption is not in favor of a power.
5. The power to regulate is not the power to prohibit all modalities of something. It
is only the power to issue prescriptions to "make regular", enforceable only by
deprivations of property or privileges, not of life, limb, or liberty. There must always be
some modality that is not prohibited.
6.2. Amendment of a Constitution
An amendment is a change to the constitution of a nation or a state. In jurisdictions
with "rigid" or "entrenched" constitutions amendments require a special procedure
different from that used for enacting ordinary laws.
6.2.1. Amendment procedures
A flexible constitution is one that may be amended by a simple act of the legislature, in
the same way as it passes ordinary laws.
The constitutions of a great many nations provide that they may be amended by the
legislature, but only by a special, extra large majority of votes cast (also known as a
supermajority, or a "qualified" or "weighted" majority). This is usually a majority of
two-thirds the total number of votes cast.
In a bicameral parliament it may be required that a special majority be achieved in both
chambers of the legislature.
Some constitutions may only be amended with the direct consent of the electorate in a
referendum. In some states a decision to submit an amendment to the electorate must
first be taken by the legislature.
6.2.2. Form of changes to the text
The manner in which constitutional amendments are finally recorded takes two main
forms. In most jurisdictions, amendments to a constitution take the form of revisions to
the main body of the original text.
Thus once an amendment has become law, portions of the original text may be deleted
or new articles may be inserted among existing ones.
The second, less common method is for amendments to be appended to the end of the
main text in the form of special articles of amendment, leaving the body of the original

25
text intact. Although the wording of the original text is not altered, the doctrine of
implied repeal applies. In other words, in the event of conflict, an article of amendment
will usually take precedence over the provisions of the original text, or of an earlier
amendment
2 Constitution II
Chapter I
Development of Documentary Constitution
Section I: Ancient and Medieval Documents of Constitutional Nature:
The Ser’ata Mengist28
The Ser’ata Mangist can hardly be considered to be a document of Constitutional Law
in its widest sense.
The leader being crowned used to be referred to as ‘Atse’ meaning King or ‘Niguse
Negest’ meaning King of Kings.
 The most real decrees of the Sar’ata Mangist were:
1. King’s Coronation;
2. According to a custom initiated by King Amda Seyon, the daughters of Zion bar – the
way of the new King with a rope when he goes to Axum to be crowned, and
3. Queen’s coronation (on Sunday’s);
The Fetha Nagasti
“’Law of the Kings’, is a collection of laws which in use in Christian Ethiopia for
many centuries. It was originally written in Arabic by the Coptic Egyptian writer
Abu-l Fada’il Ibn al-Assal(commonly known as Ibn al-’Assal
1.1 The Classical Gada System

The Gada system of the Borena Oromo’s is one of the Neolithic [sic] social
systems practiced by indigenous nationalities of Ethiopia proper. For the purpose
of clarifying its attributes to the Law of Constitution, we make a short note of the
Gada system.
The Borena Gada system represents a structure of
“a society that is stratified into two .. cross-cutting systems of peer-group
structures. One... on the basis of chronological age [the harriya system]..
[t]he other ..on the basis of genealogical ties [gada system]. .. Both sets of
groups pass from one stage of development to the next every eight years ..
[, while] newly born infant boy always enters the system of grades exactly
forty years behind the father, regardless of the age of the father.”ii
28

26
Chapter II
Dimensions in respect of Nation, Nationality and Peoples of Ethiopia
Section I: Putting the Conflict in Perspectiveiii
“Multi-ethnic society can survive only if all respective groups within the polity feel
themselves as winners.”iv
2.1 Building Multi-Cultural Democracies
2.2 Ethnicity, Nationalism and Multicultural Statesv
Ethnicityis a state of mind emanating from feeling of separate identity, based, more
importantly on the myth of common descent
nationalism combines shared common identity, feeling of distinctness from other
nationals, concerted political action to these ends. It also has the objective of attaining
some level of statehood.
As building and/or enhancing the nation can be achieved by advancingpolitical values
like democracy, economic welfare, especially in a multicultural federal system that
should be done by entrusting only those commonly shared interests to the federal state.
2.3 The Position of FDRE Constitution of Nation Nationality and Peoples
Here Abera Degafa writes:-vi
“From the text of the Constitution, the right of Nations, Nationalities and Peoples
seem to occupy a central place. For example, the opening words of the Preamble
read ‘We, the Nations, Nationalities and Peoples of Ethiopia ...’ The Preamble
identifies the Nations, Nationalities and Peoples of Ethiopia as the authors of the
Constitution. In addition, the provisions of the Constitution dealing with the rights
of Nations, Nationalities and Peoples of Ethiopia are made difficult to amend and
even during a state of emergency these rights may not be suspended, although
many other rights can be.
the Constitution declares that the fundamental rights and freedoms specified in the
Constitution shall be interpreted in a manner conforming to the principles of the
Universal Declaration of Human Rights, International Covenants on Human
Rights and international instruments adopted by Ethiopia.
In the following sub-sections, the rights of Nations, Nationalities and Peoples of
Ethiopia as provided in the scope of their rights.
But in order to do that, having the general overview of the Nations, Nationalities
and Peoples living in Ethiopia is necessary.”
2.4 Minorities in the Context of Nations, Nationalities and Peoples29
29
Id., pp. 22-27.
27
“‘Minorities’ is a term that defies simple literal definition. The dictionary meaning
of the term minority is ‘the condition or fact of being small, inferior, or
subordinate. If we give the term the simple literal interpretation, almost all
communities existing within a State can easily be taken as minorities. Since
minorities usually appear in various forms and sizes, it is possible for any person
to belong to a minority. For example, cultural groups, social classes, persons
belonging to a group of particular profession, immigrants, refugees and nearly all
communities within a state could be styled minorities
Indigenous communities, peoples and nations are those which, having a historical
continuity with pre-invasion and pre-colonial societies that developed on their
territories, consider themselves distinct from other sectors of the societies now
prevailing on those territories, or parts of them. They form at present non-dominant
sectors of society and are determined to preserve, develop and transmit to future
generations their ancestral territories, and their ethnic identity, as the basis of their
continued existence as peoples, in accordance with their own cultural patterns, social
institutions and legal systems.’vii
Section III: - The Agenda of the Then, Today and Tomorrowviii
 where citizens, in addition to their identification with their country, might also feel a
strong sense of identity with their community – ethnic, religious, linguistic and so on.
 Most states feared that the recognition of such variance would lead to social
fragmentation and prevent the creation of a harmonious society.
 In short, such identity politics was considered a threat to state unity.
 so many states in the past had usually resorted to either suppressing these diverse
identities, or ignoring them in the political domain.
 Centralization of political power, eliminating forms of local sovereignty or autonomy
historically enjoyed by minority groups, so that all important decisions are made in
forums where the dominant group constitutes a majority.
 Construction of a unified legal and judicial system, operating in the dominant group’s
language and using its legal traditions, and the abolition of any pre-existing legal
systems used by minority groups.
 Adoption of official-language laws, which define the dominant group’s language as the
only official national language to be used in/at each levels of the bureaucracy, courts,
public services, the army, higher education and other official institutions.
 Construction of a nationalized system of compulsory education promoting standardized
curricula and teaching the dominant group’s language, literature and history (favoring

28
the dominant group’s wishes) and defining them as the ‘national’ language, literature
and history (,accordingly).
 Diffusion of the dominant group’s language and culture in particular through national,
cultural institutions, including state-run media and public museums.
 Adoption of state symbols celebrating the dominant group’s history, heroes and culture;
reflected through preferential treatment on such things as choice of national holidays or
the naming of streets, buildings and geographic characteristics.
 Seizure of lands, forests and fisheries from minority groups and indigenous people and
declaring them ‘national’ resources.
 Adoption of settlement policies encouraging members of the dominant national group
to settle in areas where minority groups historically resided.
 Adoption of immigration/emigration/ policies that give preference to
immigrants/emigrants/ who share the same language, religion or ethnicity as the
dominant group.
 The strategies of assimilation and integration sometimes worked to ensure political
stability, while, at times, could be accomplished by putting at risk a great amount of
human cost and denying of human choice. At worst, coercive simulation might be
employed that ultimately could lead to genocidal assaults or expulsion of some groups.
 In today’s world of increasing democratization and global networking, policies that
deny cultural freedoms are less and less acceptable. People are increasingly assertive in
protesting assimilation without choice. Assimilation policies were easier to pursue with
illiterate peasant populations.
 Efforts to allege today in any case the historical evidence suggests that there need be no
contradiction between a commitment to one national identity and recognition of diverse
ethnic, religious and linguistic identities.
 Redressing the cultural exclusion of minorities and other marginalized groups requires
more than providing for their civil and political freedoms through instruments of
majoritarian democracy and equitable socio-economic policies. It requires explicit
multi-cultural policies to ensure cultural recognition.
This part explores the fact how states are integrating cultural recognition into their
human development strategies in five areas:
 Policies for ensuring the political participation of diverse cultural groups.
 Policies on religion and religious practices.
 Policies on Customary Law and legal pluralism.
 Policies on the use of Multiple Languages
 Policies for redressing socio-economic exclusion.
29
3.1 Proposition: Policies for Ensuring the Political Participation of Diverse Cultural
Groups
Article 46- States of the Federation
1. The Federal Democratic Republic shall comprise of States.
2. States shall be delimited on the basis of the settlement patterns, language, identity and
consent of the people concerned.
democracy is often required. Several models of multicultural democracies have
developed in recent years that provide effective mechanisms of power sharing between
culturally diverse groups, thereby ensuring the rights of diverse cultural groups and
preventing violations of their rights through imposition of simplified model of
majoritatian rule or unnecessary political dominance of the ruling elite.
 There are two broad categories of democratic arrangements in which culturally diverse
groups and minorities can share power within political processes and state institutions.
 The first involves sharing power territorially through federalism and its various forms.
Federalism is a system of political organization based on a constitutionally guaranteed
balance between shared-rule and self-rule.
 It involves at least two levels of government, namely a central authority and its
constituent regional units.
 The Constituent units enjoy autonomy and power over constitutionally defined subject-
matters;
 they can also play a role in shaping the policies of the central government.
Coming together or Bonding together:- In “coming together” federal arrangements, is
when the regions choose to form a single federal polity.
In “holding together” arrangements, the central government devolved political
authority to the regions to maintain a single unified state.
 “Mono-national” or One identity or many:-“national” federations assert a
single national identity.
“Multi-national” federation, constitutionally recognize multiple identities. Other
states combine the two. India and Spain assert a single national identity but recognize
plural aspects of their heterogeneous poli (diverse)
 Symmetric federalism:- In symmetric federalism the constituent units have
identical, that is symmetric, powers, relations and obligations relative to the
central authority and each other; example, as in Australia.
In asymmetric federalismsome provinces enjoy different powers. In Canada, for
example, asymmetric federal powers provided a way of reconciling Quebec to the

30
federal system by awarding it specific powers connected to the protection and
promotion of French-Canadian language and culture.
The second category of arrangement involves power sharing through consociations;

i.e. using a series of instruments to ensure the participation of culturally diverse groups
dispersed throughout the country. These arrangements address claims made by groups
that are not territorially concentrated or do not demand autonomy or self-rule.
Consociations are based on the principle of proportionality: the ethnic or cultural
composition of the state. Achieving proportionality requires specific mechanisms and
polices. Electoral arrangements such as proportional representation can better reflect
group composition, as can the use of reserved seats and quotas in the executive and
legislature.
Power Sharing through Federal Arrangements: Asymmetric Federalism
Federalism provides practical ways of managing conflict in multi-cultural societies
through democratic and representative institutions, and of enabling people to live
together even as they maintain their diversity.
such “asymmetric” federal systems, the powers granted to subunits are not identical.
Some regions have different areas of autonomy from the others.
3.2 Policies on Religion and Religious Practices
Article 11-Separation of State and Religion
1. State and Religion are separate.
2. There shall be no state religion.
3. The state shall not interfere in religious matters and religion shall not interfere in state
affairs.
Sometimes the arguments for women’s rights and principles of equality get entangled
with concerns for minority rights and cultural recognition.
 Gender Equality – how patriarchal customs and laws, be they Hindu or Muslim, treat
men and women differently in terms of their legal entitlements.
 Cultural Freedoms and Minority Rights – whether the state should reserve the right to
intervene in matters of religious practice to assert natural rights while at the same time
protecting the right of groups to practice their religion.
3.3 Policies on Customary Law and Legal Pluralism
Article 91(Sub 1)-Cultural objectives
Government shall have the duty to support, on the basis of equality, the growth and
enrichment of cultures and traditions that are compatible with fundamental rights,
human dignity, democratic norms and ideas and the provisions of the Constitution.
31
Article 34(Sub 4 & 5)- Marital, Personal and Family Rights
4. In accordance with provisions to be specified by law, a law giving recognition to
marriage concluded under systems of religious or customary laws may be enacted.
5. this Constitution shall not preclude the adjudication of disputes relating to personal
and family laws in accordance with religious or customary laws, with the consent of the
parties to the dispute. Particulars shall be determined by law.
Certain religious and ethnic minorities and indigenous groups feel alienated from the
large legal system for a number of reasons.
In many countries indigenous people are almost entirely unrepresented in the judiciary.
From a human development perspective all legal systems – whether unitary or plural –
must conform to international standards of Human Right, including gender equality.
Some critics, therefore, argue that if the legal system of the larger society respects
Human Rights norms, there is no need to maintain legal pluralism. However, even
where there is a consensus on Human Rights norms, there may still be a valuable role
for legal pluralism.
Plural legal systems existed in almost all societies; evolving as local traditions, these
were historically accommodated, also with other formal systems of jurisprudence.
Customary practices, which acquired the force of law over time, coexisted alongside
introduced systems of jurisprudence.
Such legal pluralism often had roots in the colonial logic of protection of minority
rights, which allowed certain customary systems to continue while imposing the
colonizer’s own laws.
Accommodating Customary Law can help protect the rights of indigenous people and
ensure a fairer application of the rule of law. Efforts to accord public recognition to
Customary Law can help create a sense of inclusion in the wider society.
Often the most pragmatic case for Customary Law, especially in parts of failed states, is
that the choice is between Customary Law and no law.
Recognizing the ability of indigenous people to adopt and administer their own laws is
also a repudiation of historic prejudice – and can be an important part of self-
government for indigenous people.
3.4 Policies on the use of Multiple Languages
Article 5- Languages
1. All Ethiopian languages shall enjoy equal state recognition.
2. Amharic shall be the working language of the federal Government.
3. Members of the federation may by law determine their respective working languages.

32
“Let us each retain our own language in certain spheres, such as schools and
universities, but let us also have a common language for joint activities, especially in
civil life.”
In multilingual societies a multiple language policy is the only way to ensure full
democratic participation.
In addition to issues of language use in national institutions, there is also a risk that
national information media could be monopolized by speakers of one (or two) dominant
languages.
3.5 Polices for Redressing Socio-Economic Exclusion
Article 35(Sub 3)-Rights of Woman
“…woman in Ethiopia … are entitled to affirmative measures. The purpose of such
measures shall be to provide special attention to woman so as to enable them compete
and participate on the basis of equality with men in political, social and economical life
as well as in public and private institutions.
Article 89(Sub 4)- Economic Objectives
Government shall provide special assistance to Nations, Nationalities and Peoples least
advantaged in economic and social development. (Emphasis added)
 Addressing unequal social investments to achieve equality of opportunity;
 Recognizing legitimate collective claims to land and livelihoods and
 Taking affirmative action in favor of disadvantaged groups
Addressing Unequal Social Investments to Achieve Equality of Opportunity
Policies that promote growth of equity are necessary to achieve socio- economic
inclusion for all groups. For most developing countries this would include investing in
the agricultural and other labor intensive sectors and broadening access to assets,
especially agricultural land. But too often, development policies become a source of
inter-group tension. In other words, development itself can create, sustain and often
intensify inequalities between groups and between individuals.
Taking Affirmative Action in Favour of Disadvantaged Groups
Affirmative action policies allocate jobs, promotions, public contracts, business loans,
admissions to higher education and legislative seats on the basis of membership in a
disadvantaged group. Such policies are needed when the disadvantage is under cultural
exclusion.
Typologies of Federations
Section I: Theoretical Foundation of Federalism30
30

33
The term “federal” was coined in 1685 by a group of theologians who revived the
study of the holy and everlasting covenant which, from time to time made between god
and people. They derived the term from the Latin word foedus (covenant) using it as
the basis for their own philosophy of life.
The real meaning of “federalism” refers to an alliance, a treaty, or an oath of allegiance
and, by implication, emphasizes the right of those who share in the covenant to make
their own decisions.
Prerequisites for Federal Associations31
When separate states or communities want to unit on a federal bases, there are two basic
considerations,
Firstly there must be a strong need and desire to shoulder common interests jointly.
Secondly there must be an equally strong need and desire to shoulder domestic
interests separately.
Section II: Different types of Federations
One can differentiate one form of federalism from another on two bases: the first is
based on is origin, the second is based on its foundation.
Centripetal and Centrifugal Linking Units
a. Centripetal linking is where independent states move closer together to create a federal
state. Most federations have this type of origin, for example the USA and Switzerland.
b. Centrifugal linkingis where decentralized unitary units are converted into a federation.
Usually unilateral action is initiated by the central authority. At the moment Belgium is
in the process of changing over to a federal system in this way.
Federal Units32
a. Territorial Units
Here, it is territorial area that serves as unit of the federation. These areas can again be
subdivided into two kinds, namely city-states on the one hand and states on the other
hand.
b. Corporate Units
is a type of federalism in which various groups or communities inhabit the same region
and attend to their own domestic interests in accordance with the subsidiary principle,
but naturally co-operate with each other on matters of common concern.
As far as the composition of the central legislative body is concerned, the various
communities themselves compose the constituent parts or corporations.
The departure point is that a state such as this does not consist merely to a collection of
individuals but of whole which consists of various collectivities.
31
32

34
a.Nation Centered Federalism: the foundation of the nation centered federalism was
laid by Alexander Hamilton in “The Federalist”. His belief in a strong national
government was later reinforced by judicial decisions.
judicial review was often used as a weapon for, “keeping the states within bounds”.
“the national government is the government of all, its powers are delegated by all, it
represents all and acts for all”. It was the court’s decision in this case that became the
source of the “doctrine of implied powers”
b. State Centered Federalism:
“The powers delegated by the proposed constitution to the federal government are few
and defined (article 1). Those which are to remain with the state governments are
numerous and indefinite. The former will be exercised principally on eternal
objects……… the powers reserved to the several states will extend to all the objects,
which in the ordinary course of affairs, concern the lives, liberties and properties of the
people and the internal order, improvement and prosperity of the state.”
c. Dual Federalism“the federal constitution, so far from intending to make its political
spheres morally unequal in powers or to invest the greatest (union/center) with any
species of:sovereignty over the least (states), intended the very reverse”.
d. Cooperative Federalism:
they consider the possibilities of mutual aid. The most important device of cooperative
federalism is that of providing grants-in-aid to the states. The Federal Government can
attach stipulations while granting funds and finally is free to withdraw the grant
whenever it discovers that the state is not complying with the stipulated conditions.
e. Creative Federalism: This has all the features of cooperative federalism, yet has
some unique elements of its own. It lays emphasis on cooperation, not only between the
federal and state governments but between them and the local units, private
organizations and the public at large. All are regarded as a working team, dedicated to
positive action in solving the problem facing the nation, with perhaps a different
combination of forces at work in each different problem area and with the national
government, not always the senior partner.
Part II: FDRE Constitution: Vertical and Horizontal Division of Power (HPR)
Chapter I
Form and Scope of Distribution of Powers33
Section I: Exclusive Powers
In general, this refers to the powers to be distributed in federal systems falling to one of
two main categories: exclusive powers and non-exclusive powers.
33

35
Traditionally the use of exclusive powers refers to the powers for which the federal
constitution has created a monopoly, which either is in the hands of the federation or of
the states
Section II: Shared Legislative Powers34
Shared powers represent the meeting point of the two levels of governments, otherwise
considered exercising exclusive shares of federal and state powers. These powers refer
to that category of powers in which both the federation and the states exercise at some
point at least part of the power.
Framework of Power35
The federal government may use framework legislation to regulate federation wide
standards while leaving the states room to legislate the details and to deliver the
services in a manner adaptable to local situations. The states under this category of
powers are allowed to fill in the gaps with more detailed laws.On the other hand, in
Ethiopia Civil Law is the residual power of the states
Section III: Concurrent Powers36
Article 51(1) provides that “[t]he Federal Government] shall protect and defend the
Constitution.”
From this proposition one may arrive at the following conclusions, namely:
a) Each and every state shall protect and defend its own, respective Constitution.
b) Jointly and severally, states shall protect and defend the FDRE Constitution.
c) The Federal Government shall also be responsible for protecting and defending the
respective Constitutions of each and every state.
Here, aren’t (b) and (c) concurrent powers?
Section IV: Residual Powers37
Residual powers represent those powers not listed or partly listed by the Constitution
and assigned to either unit of government.
The United States, Switzerland, Germany, and Ethiopian Constitutions have preferred
to leave residual powers with the states while in India such powers belong to the center.
Section V: Fiscal Federalism: A General Description38
In brief, the literature on fiscal federalism encompasses: principles of fiscal relations
between central and sub national levels of government that is the command over
resources by the various levels of government and the direction and size of inter
governmental fiscal flows. This includes the divisions of tax powers and the means
34
35
36
37
38

36
through which resources are adjusted to match expenditure responsibilities for central
and sub national levels of government.
Generally, the study of fiscal federalism focuses on the allocation of expenditure
responsibilities, revenue raising powers and adjusting vertical and horizontal
imbalances through intergovernmental fiscal transfers.
Division of Revenue-Raising Powers and Responsibilities39
In a federal system, powers allocated to governments could be of two general kinds:
functions and responsibilities to be discharged by each government, and means for
affecting these responsibilities.
General Constitutional Methods in Division of Tax Powers40
the entire revenue sources can be given either to the centre or to the states, or can be
divided between them,.
Structure of Allocation of Taxation Power in Ethiopia
The FDRE Constitution divides taxation power into three categories, namely:- a)
federal power of taxation, b)state power of taxation, and c) concurrent power of
taxation.
In Ethiopia, the FDRE Constitution declares that the Federal Government shall levy
taxes and collect duties on sources reserved to it, and the states, likewise, exercise the
same power with respect to sources that fall under their jurisdiction. Thus, the two
levels of government exercise their legislative and administrative powers within their
respective spheres of taxation. As a result, the revenue generated from the respective
sources belongs exclusively to each level of government. Each level of government is
bound to respect the powers of the other.
Concurrent Power of Taxation41
several issues arose regarding the exercise of the concurrent power of taxation. Article
98 of the Constitution states that regional states shall jointly levy and collect revenue.
Residual Taxes42
Article 99 of the Ethiopian Constitution reads: “the house of Federation and the House
of Peoples’ Representatives shall, in a joint session, determine by a two-thirds majority
vote on the exercise of powers of taxation which have not been specifically provided for
in the Constitution”.
Questions that matter
1. Do you differentiate between and among
a) Concurrent,
39
40
41
Iid.
42
Ibid.
37
b) Joint, and
c) Shared taxation powers.
Delegated legislation:-
A) Parliament is too busy a body. If it devotes its time in entering into minor and
subsidiary details and attempts to lay down all rules, all its time will be taken over by
only a few Acts. The pressure of time prevents Parliament from providing all the details
and, therefore, has to confer on the executive rule-making powers to supplement the
Act.
Limits:- is that, essential powers of legislation cannot be delegated. The essential
legislative power consists of the determination or choice of the legislative policy and of
formally enacting that policy into a binding rule of conduct.
When we see the Ethiopian Constitution, there is a delegation of power at the federal
level under Art 77(13), which stipulates that the Council of Ministers shall enact
regulations pursuant to powers vested in it by the House of Peoples’ Representatives.
But, what about the case at state level? Does the state council, for example, in the
Amhara Region., delegate its legislative power to the state administration the highest
organ of executive power?
Chapter II
HoF and the Office of the President
Section I: - Federations and Second Chambers: HoF43
The power of second chambers
In assessing the legislative power of upper houses in Federal countries, two trends are
prominent.
The first category of upper houses is equally share the power of law making with lower
houses. The consent of both houses is a unconditional for a bill to obtain a legal force.
The two houses in this regard are co-equal as no law can be enacted unless both houses
agree on the same text
. The second category of upper houses plays a subsidiary role. Each piece of legislation
does not need the approval of both the lower and upper houses, but the latter make sure
that the interests of the states are taken into account..
The HF: A non legislative second chamber
The FDRE constitution fulfills the minimum requirement of having a second chamber
but with a totally different function. Article 53 states that there shall be two federal
house named the house of people’s Representative (HPR) and the House of Federation
(HF).
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38
The power and responsibilities of the House of Federation according the constitution
and the proclamation consolidation the powers and responsibilities of the House of
Federation are to:
 Interpret the Constitution;
 Organize the Council of Constitutional Inquiry;
 Decide, in accordance with the Constitution, on issues relating to the rights of Nations,
Nationalities and peoples to self-detennination, including the right to secession;
 Promote the equality of the peoples of Ethiopia enshrined in the Constitution, and
promote and consolidate their unity based on their mutual consent.
 Strive to find solutions to disputes or misunderstandings that may arise between states;
 Determine the division of revenues derived from joint federal and State tax sources, and
the subsidies that the Federal government may provide to the States;
 Determine civil matters which require the enactment of laws by the house of peoples’
Representatives.
 Order the federal Government to intervene if any state threatens the Constitutional order
in violation of the Constitution;
 Determine on the draft proposal of electoral constituencies submitted by the National
Election board based on Article 103/5/ of the Constitution;
 Determine jointly with the house of peoples’ Representatives the power of taxation on
revenue sources, in accordance with Article 99 of the Constitution, of which neither the
Federal nor the State governments have responsibility
 Elect the president of the country in a joint session with the House of peoples’
Representatives in accordance with Article 70/2/ of the constitution.
 Participate in the process of the Constitutional amendment as stipulated in sub-Article
(I) and (2) of Article 105 of the Constitution:
 In collaboration with others, offer education and training, and whenever necessary,
carry out research in matters pertaining to its responsibilities
 Establish permanent and ad hoc committees of the House;
 Elect the speaker and Deputy Speaker of the house
In this long list of the house of Federations powers and responsibilities, the only
provisions we can trace legislative functions are Article 99, 62(7) and 105.
 To determine undesignated power of taxation (concurrently with the House of People’s
Representative)
 To determine the division of revenues derived from joint Federal and State tax sources,
and the subsidies that the Federal government may provide to the States;

39
 To amend the constitution.
Tenure
If we examine the Ethiopian constitution, the House of Federation as the house of
people’s Representative is dissolved every five years. Furthermore, the election year for
both the HPR and HF is congruent. As type of government is parliamentary democracy,
the executive will also leave office and the ceremonial president is the only individual
holding office between parliamentary elections. This clearly creates a power vacuum
which could be a bodied if the terms of the HF and HPR are separated and the HF made
a permanent institution which is not subject to total dissolution.
Judicial review by ordinary judiciary
Principle
Judicial review is the power of courts to pass judgment upon the constitutionality of the
legislative acts which fall within their normal jurisdiction.
Courts can refuse to enforce a legislative which are unconstitutional and hence void.
HoF: Its Role in the Interpretation of Constitution
1. General
1) The House shall have the power to interpret the Constitution.
2) Notwithstanding with sub-Article (1) of this Article the House shall not be obliged to
render a consultancy service on Constitutional interpretation.
2. Constitutional Interpretation
1) The house shall make the final decision upon draft proposal of constitutional
interpretation submitted to it by the Council of Constitutional Inquiry.
2) A party dissatisfied with the decision of the Council of constitutional inquiry of
rejection of case relating to review of constitutional interpretation may appeal to the
House.
3. Forwarding cases of Constitutional Interpretation
The house shall forward new cases of Constitutional interpretation, submitted to it
directly, to the Council of Constitutional Inquiry.
4. Principles for Executing Constitutional interpretation
1) The House shall identify and implement principles of Constitutional interpretation
which it believes help to examine and decide Constitutional cases submitted to it.
2) Where the Constitutional case submitted to the house pertains to the fundamental rights
and freedoms enshrined in the Constitution, the interpretation shall be made in a manner
conforming to the principles of the Universal Declaration of human Rights,
International Covenants on human Rights, and International instruments adopted by
Ethiopia.
40
5. Additional Information and Evidence
The house shall collect additional information or order the pertinent body to produce
evidence as may be necessary before it makes a final decision upon Constitutional
interpretations.
It’s Role in Fiscal Matters
The Ethiopian Constitution provides a separate regime of allocation of powers on
matters concerning taxation (see above). The Ethiopian federal system insists on the
allocation of separate legislative, executive, financial and judicial powers to each and
every level of government.
Stability and Effectiveness44
In much of the literature ‘stability’ is the major indicator of working democracy. The
reasoning is that if a parliamentary system obtains stable government, then it equally
obtains effective government. Conversely, unstable governments attest to inefficient
government.
The Office of the Prime Minister
“The prime minister is the chief executive, the chairman of the Council of Minister, and
the commander-in-chief of the National Armed Forces.”45
Appointment of the PM46
(1) The prime minister shall be elected from among members of the House of Peoples’
Representatives.
(2) Power of government shall be assumed by the political party or coalition of political
parties that constitute(s) a majority in the House of Peoples’ Representatives.
INTERVENTION IN CASE OF DETERIORATIONG SECURITY SITUATION
1. Principle
The security situation shall be deemed to have been deteriorated where there is an
activity that disturbs the peace and safety of the public and the law enforcement agency
and the judiciary of the Region are unable to arrest the security problems in accordance
with the law.
2. Request of the Region
The State Councilor the highest executive organ of the Region shall present its request
to the Prime Minister through the Ministry of Federal Affairs where any Region faces a
deteriorating security situation and is unable to arrest it on its own.
3. Deployment of Force by the Federal Government
44
.
45
46
.
41
1. The Prime Minister shall deploy the Federal Police or defense force, or both to arrest
the deterioration security situation taking into consideration the gravity of the situation.
The force to be deployed shall be under the command of the concerned Federal organ;
6. Report
The Prime Minister shall present periodic report to the House of Peoples’
Representatives on the activities carried out by the forces in the Region.
INTERVENTION IN CASE OF VIOLATIONS OF HUMAN RIGHTS
INTERVENTION WHEN THE CONSTITUTINAL ORDER IS ENDANGERED
Parliamentary Control over Defense
I. Direct Control:
a. By Enacting Legislations
Following the procedures established by law and the Constitution, the House of
Representatives, has as per Article 55(7) the power to determine by enactment the
organization of the national defense and public security.
b. Allocation of Budget
On the basis of the budget proposal formulated by the Ministry of Defense, developed
and submitted by the Council of Ministers, the House of Representative has the power
to ratify the federal budget as per Article 55(11).
c. Enforcing Transparency
There is no direct reference to transparency with respect to defense, but the Constitution
under Article 12 states that the conduct of affairs of Government shall be transparent.
Then
 How is the scope of state secret determined?
 How much should the mass media have access to state secrets?
d. Enforcing Political Neutrality
Under chapter ten, Article 87(2)(4) and (5), captioned as on National Policy and
Objectives, the Constitution stipulates
 Composition of the defense force shall reflect ethnic composition of the Country;
 The Minister of Defense shall be civilian;
 The armed forces shall at all times obey and respect the Constitution; and
 The armed forces shall carry out their functions free of any partisanship to any political
organization(s)
Then:-
e. International Relation
The House of Representatives, as per Article 55 (12) has the power to ratify
international treaty.
42
f. Human Right Infringement
 Under Article 55(7), it is provided that if the conduct of the forces infringe upon human
rights, the House of Representatives shall carry out investigation and take the necessary
measures.
g. The use of Defense in time of War and Peace
The House of Representatives has the power to:-
 As Commander-in-Chief of the Army, the Prime Minster leads the operational aspect of
defense matters. The General Chief of Staff is directly under him.
h. The Council of Ministers
 determines on the implementation of the laws and decisions adopted by the House of
Representatives;
 decides on the organizational structure of ministries and other organs of government;
and it coordinates the activities of same;
 draws the annual federal budget and when approved by the House of Representatives, it
implements same;
 submits draft laws to House of Representatives, including Emergency Decree made as
per Art 93 of the Constitution;
 has the power to regulate matters by issuing regulations.
ssII. Peripheral Control Mechanisms
a. The House of Federation/Council of Constitutional Inquires:-
 by interpreting the Constitution.
b. Federal Ethics and Anti-Corruption Commission
 By creating awareness and promoting public service code of ethics.
 By preventing, if possible, when it is committed by investigating and bringing the cases
before a court of law.
c. Human Rights Commission and Ombudsman
 What is and would be its role in defense matters?
d. Auditor General and the Ministry of Finance
 Conducting auditing annually and inspecting budget performance: fiscal and asset
auditing;
 Regulating disbursement and purchasing of goods and services.
Charter III
The Judiciary and Other Organs of Control
Section I:- Judicial Power47
Exclusive Power
47

43
The Ethiopian judicial system, theoretically speaking, is organized on a dual basis in
which there are two parallel court systems, the federal courts and the state courts with
their own independent structures and administrations.
Article 2(3) of Proclamation 25/96 as “laws of the federal government include all
previous laws in force which are not inconsistent with the constitution and relating to
matters that fall within the competence of the federal government as specified in the
constitution.”
The Power of Cassation
the Federal Supreme Court shall have the highest and final judicial power over federal
matters, whereas the State Supreme Court shall have the highest and final judicial
power over state matters. In this regard, it appears, as far as state matters are concerned,
there is no appeal from State Courts to Federal Courts. However, the assertion of
matters within each respective state is not without difficulty. The Federal Supreme
Court has found ways and means of reviewing State Supreme Court of last resort for
appeals in civil and criminal cases.
A. The Federal Supreme Court has a power of cassationover any final court decision
containing a basic error of law.
B. The State Supreme Court has power of cassation over any final court decision on state
matters which contain a basic error of law.
Section II:- Power of other Organs of Control
 The Institution of the Ombudsman;
 The Human Rights Commission;
 Auditor General;
 The House of Federation together with CCI, as interpreters of the Constitution, which
have been already treated, above.
Organization and Duties
The Ombudsman’s Office is strictly unpolitical, and it has been a tradition that an
Ombudsman should be acceptable to all the political parties
The Ombudsmen usually come from the judiciary and are recruited among persons who
are, or would be suitable as Justices of the Supreme Court or the Supreme
Administrative Court.
The Jurisdiction of the Ombudsman
The Ombudsman’s supervision covers virtually all governmental agencies and the local
government as well as the individual members of their staff. The four Ombudsmen,
thus, supervisethe police, the security police, the armed forces and the prison
administration, respectively.
44
The Ombudsmen also supervise all other persons who exercise public power. For
example, an employee of a state-owned company which is responsible for safety
controls of cars can be subject to supervision by the concerned Ombudsman to ensure
that no car with faulty design or defects makes it to the roads.
Investigatory Powers
The Ombudsmen have vast powers of investigation which are laid down in the
Constitution. Thus, they have access to all official documents
The Ombudsman’s Office is usually described as an extraordinary institution.
The role of the Ombudsman is, instead, based on the principle of personal
accountability of every official for his decisions.
Part III: Miscellaneous Concerns
Chapter II
Emergency Powers
Need for extra powers during Emergency48
“In a federal country, such extraordinary emergency situation would call for a greater
concentration of powers in the federal or national authorities and a greater
encroachment (infringement) on the powers normally assigned to the State
Governments.
The problem of Emergency in a Democracy
“Whatever be the form of Government, emergent situations are bound to arise in any
country,owing to various factors like war, rebellion, natural disaster, economic or
financial breakdown which call for immediate measure to be taken by the Government
to safeguard the stability of the country or the safety of the citizens, which, in order to
be adequate, must be different from or in addition to the normal system of
administration.
Public emergency
Tests of: “Combining the foregoing two observations, a ‘public emergency’, which
authorizes extraordinary measures derogating from human rights, nay be defined as -
a) An exceptional situation,
b) Which threatens the organized life of the whole community,
c) Which calls for extraordinary measures, and
d) Which are not permitted by the normal machinery of the administration.
War Emergency
Other Public Emergency49
48
49

45
International Charters
“Natural catastrophe, such as famine, or pestilence, flood, earthquake, causing
destruction of life or property.
a) Economic or financial crisis caused by war by continuing even after its termination.
b) An economic crisis, like inflation, in time of peace, imperiling the well being of the
nation as a whole, so as to require a regulation and control of prices, profits, wages,
salaries, dividends and the like. ..”
What measures would be justified to deal with the Emergency50
i) The safeguards taken for preventing abuse of the extraordinary powers;
ii) The extent of invasion of human rights and liberties;
iii) The manner in which the measure were applied.
Rights which cannot be derogated front even in Emergency
(i) Right to life (Art. 6).
(ii) Immunity from torture or inhuman treatment (Art.7).art.18 of FDREC
(iii) Freedom from slavery or servitude (Art. 8(1)-(2))
(iv) Immunity from imprisonment for non-fulfillment of contractual obligations
(Art.11).
(v) Immunity from retroactive or ex post facto criminal laws and penalties (Art. 15).
(vi) Right to be recognized as a person before the law (Art.6).
(vii) Freedom of thought, conscience, religion (Art.18).
Chapter III
Constitutional Interpretation and Creating Nexus with (Mainstreaming) of
Constitutional Values
Section I:Principles of Interpretation in Continental and Common Law Systems 51
In detail, the following series were developed in the process of interpretation of statutes
in Common Law Countries:-
o literal theory,
o subjective theory,
o purposive theory,
o teleological or value-coherent theory,
o systematic or comparative theory,
o judicial or free theory,
o objective theory or delegation theory.
Literal Theory
50
51

46
the words do not by themselves determine the legal meaning but have to be interpreted
in their legal context or by going back to the intent of the law-giver. The relationship
between words and their meaning is not mathematical or quantitative. According to the
theory the following rule was accepted: “Words should be generally given the meaning
which the normal speaker of the English language would understand them to bear in
the context, in which they were used.”
Intentional or Subjective Theory
There are also two different ways to detect the subjective meaning or the intent of the
law-giver:
“The first way would mean to find out what the draftsmen or members of
parliamentary committees wanted to express in their comments or papers.
Sometimes it might be possible to find out what the legislator really meant when
he used a certain word or a certain language.
“There is however a second way, which is to find out the aim of the lawgiver in
changing the policy of the existing law or in correcting an inadequacy in it. The
same is also sound as a fiction, and, as such, the aim of the legislator must be
carefully detected out of the law giving process. This form of subjective
interpretation is very close to another method which will be explained in the next
The Purposive Theory
The purposive theory can be said objective and much more general with regard to the
interpretation of a rule or regulation. This theory does not look at the always doubtful
intention of the law-giver, but at the objectives of the law as a whole rather than at the
specific rule which is to be applied.
In such instances, a method, which is called the contextual approach, is employed; a
method that prescribes that the regulation or the very specific rule in question be put
into the whole system of the enactment or even the code itself.
Teleological Theory
The judges tried to find the spirit or the letters of the law. This method is not identical
with the purposive method because the teleological theory is based on equity.
The idea that laws have to be softened or tempered by equity can already be found in
antiquity. This teleological method is clearly value oriented; which means that in an
equitable approach such basic values like freedom and equality, fairness and due
process by means of interpretation of the law and the Constitution should be given
effect to. Although in Continental Law, the idea of equity does not play the same role as
in the Common Law, the idea of teleological interpretation, as a value oriented
instrument, is often employed.

47
Systematic or Comparative Theory
some elements of the intentional theory, the purposive theory and the teleological
theory are put together in this method. This results from the fact that Continental Law is
generally based on codified law; i.e. on an organized and logical system of rules. The
purpose of a law or regulation can therefore often be found in other parts of the same
enactment. In the same way, the so called contextual aids or elements, which are used
by the intentional theory, also form a systematic order and belong, therefore, to the
systematic method of interpretation.
Objective Theory or Delegation Theory
This theory was originally developed as a reaction against the intentional theory,
because it was believed to be more or less a fiction that the interpreter could find out the
real intention of the lawgiver. This theory believes that the words of a regulation are
just a delegation to the Court; one that gives it the competence for its own
interpretation. Therefore the more imprecise the regulation would be, the more authority
would be transferred to the Court to decide.
6. Intervention of the Federal government
1) The House shall order the Federal Government to intervene in any State in which it
believes the constitutional order is endangered.
2) The House shall take this measure having due regard to the general constitutional
structure and division of powers. The following cases are, however, sufficient to say
that the constitutional order is in danger:
a. Suspension of government institutions recognized in the constitution directly or
indirectly from their regular functioning or;
b. The failure of any state to execute directives given to it by the House of Peoples’
Representatives in accordance with Article 55/16/ of the constitution, or its
unwillingness to do so or;
c. Where the state fails to secure peace and security using its own regular peace keeping
mechanism due to the fact that the problem is beyond its control and fails to call the
Federal Government to intervene in such state of affairs
3 HUMAN RIGTHS LAW
Chapter One: Introduction to Human Rights Law
Nature and Definition of Human Rights- theybelong to an individual as a

consequence of being human.
Human rights differ from other rights in two respects.

48
Firstly, they are characterised by being:
 Inherent in all human beings by virtue of their humanity alone (they do not
have, e.g., to be purchased or to be granted);
 Inalienable (within qualified legal boundaries); and
 Equally applicable to all.
Secondly, the main duties deriving from human rights fall on states and their authorities
or agents, not on individuals.
Author Yohanan Yokamo(Hawassa Univeristy) stated that HRs are equivalent to Legal
rights where there is effective legal regim or legal reconginition both in theory or
practice within qualified legal boundaries. Behind every provisions, there is abstract
level of understanding. These are the levels
1. Idealizations (conceptualization)
2. Codification (norm setting or standardazation)
3.Enforcment stage ( like making HRs real)
Classification of Human Rights
1)CLASSIC AND SOCIAL RIGHTS
‘ Classic’ rights are often seen to require the non-intervention of the state (negative
obligation), entail an obligation for the state to refrain from certain actions. civil and
political rights, often require considerable investment by the state.
‘social rights’ as requiring active intervention on the part of the state for there effective
realization(positive oblgn), oblige it to provide certain guarantees.
2)CIVIL, POLITICAL, ECONOMIC, SOCIAL AND CULTURAL RIGHTS
civil rights - the right to life, liberty and security of the person
political rights- freedom of expression, freedom of association and assembly, the right
to take part in the government of one’s country.
economic and social rights- to the right to property, the right to work, the right to a fair
wage, a reasonable limitation of working hours, and trade union rights.

49
cultural rights- the right to participate freely in the cultural life of the community, to
share in scientific advancement, and the right to the protection of the moral and
material interests resulting from any scientific, literary or artistic production of which
one is the author.
DIFFRENCES
*civil and political rights are considered to be expressed in a very precise language,
imposing merely negative obligations which do not require resources for their
implementation, and which, therefore, can be applied immediately.
economic, social and cultural rights are considered to be expressed in vague terms,
imposing only positive obligations conditional on the existence of resources and
therefore involving a progressive realisation.
* civil and political rights are justiciable whereas economic, social and cultural rights
are not.
3) FUNDAMENTAL AND BASIC RIGHTS ?????
Fundamental rights are taken to mean such rights as the right to life and the
inviolability of the person.
Basic rights, which should be given absolute priority in national and international
policy. These include all the rights which concern people’s primary material and non-
material needs- the right to life, the right to a minimum level of security, the
inviolability of the person, freedom from slavery and servitude, and freedom from
torture. Basic rights include economic and soc rhts but, it does not include rights like
protection of privacy and ownership.
4)OTHER CLASSIFICATIONS
Freedoms- Preconditions for a dignified human existence have often been described in
terms of freedoms (e.g., freedom of movement, speech, belief, freedom from torture,
and freedom from arbitrary arrest).
Civil liberties-The concept of ‘civil liberties’ is commonly known, particularly in the
United States,
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These refer primarily to those human rights which are laid down in the United States
Constitution: freedom of religion, freedom of the press, freedom of expression, freedom
of association and assembly
Individual and collective rights- Although the fundamental purpose of human rights is
the protection and development of the individual (individual rights),
- some of these rights are exercised by people in groups (collective rights), eg,
selfdetermination (membership is a must), Env'tal rht, rht to association..
Generational classification of rights
First, second and third generation rights
The division of human rights into three generations was first proposed by Karel Vasak
at the International Institute of Human Rights in Strasbourg. His division follows the
principles of Liberté, Égalité and Fraternité of the French Revolution.
First generation rights are related to liberty and refer fundamentally to civil and political
rights.
The second generation rights are related to equality, including economic, social and
cultural rights.
Third generation or ‘solidarity rights’ cover group and collective rights, which include,
inter alia, the right to development, the right to peace and the right to a clean
environment.
Type of state Duties
- Duty to respect - vertical effect of HR/ negative oblgn since it require refraining of
state
-Duty to protect - Horizontal effect of HR/ +ve obgn - state gives effective remedy
during infringment
- Duty to fulfill and duty to promote - positive oblgn
Sources of Human Rights Law
-International conventions, whether general or particular;
-International custom, as evidence of general practice accepted as law;
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-The general principles of law recognised by civilised nations;
-Subsidiary means for the determination of rules of law (judicialdecisions and the
teachings of the most qualified publicists)
-decisions and teachings of the most highly qualified publicists.
Chapter Two: Human Rights Systems :( Substantive Rights, Institutions and
Procedures)
1)The Universal System: The UN System
*The Legal Framework- UN Charter, UDHR, ICCPR, ICESCR (both have normative
& procedural parts), International Convention on the Elimination of All Forms of
Racial Discrimination ,1965 (CERD), CEDAW (1967) (The issues of gender-based
violence are not specifically addressed in the convention. CRC (1989).The committee
set up under the convention has also addressed this subject in its General
Recommendation of Article 19), Genocide C, Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment (1984), CRC (1989),
Reservations and Declarations

a reservation is a statement made by a state by which it purports to exclude or alter the
legal effect of certain provisions of a treaty in their application to that state.
A state may, when signing, ratifying, accepting, approving or acceding to a treaty,

formulate a reservation unless:
(a) The reservation is prohibited by the treaty;
(b) The treaty provides that only specified reservations, which do not include the
reservation in question, may be made; or
(c) In cases not falling under subparagraphs (a) and (b), the reservation is
incompatiblewith the object and purpose of the treaty.

52
Some conventions allow or even require states parties to make declarations concerning
the extent to which they are bound by a certain provision. Such statements may relate to
the competence of a supervisory mechanism.
Eg. Article 41 ICCPR stipulates that a state party may choose (not) to recognise the
competence of the Human Rights Committee to receive state complaints regarding its
human rights performance.
Restrictions and Derogations

Conventions and other instruments may contain a number of restrictions or limitations
to the rights they stipulate.(no rt is absolute)
Some human rights instruments allow states to take measures derogating temporarily
from some of their obligations. Derogating measures/suspension must be of an
exceptional and temporary nature- abnonormal time like state of emergency. the state is
allowed to suspend the exercise of some rights when necessary to deal with an
emergency situation. where as Restrictions - is during normal time case and applies
every time
The rationale for derogation provisions is to strike a balance between the sovereign
right of a government to maintain peace and order during public emergencies, and the
protection of the rights of the individual from abuse by the state. the state is allowed to
suspend the exercise of some rights when necessary to deal with an emergency
situation.
There are 2 type of restrictions. 1st - General limitation clause eg. UDHR and 2nd-
Specific (right related) limitation. eg like FDREC and European..
*Institutions and Procedures

-Treaty-based mechanism: supervisory mechanisms enshrined in legally binding
human rights instruments or conventions. ICCPR has treaty body(HR committe).

53
-Non-treaty- based (charter-based) mechanisms: supervisory mechanisms not based
on legally binding human rights treaty obligations. Zey r based on the constitution or
charter of an intergovernmental human rights forum, or on decisions taken by the
assembly or a representative body of the forum in question. (ICJ, UNGA, UNSC, Eco
and Soc Council, UNHRs Council, ILO)
The various supervisory procedures established in human rights treaties can be divided
into four main groups:
 Reporting procedures
 Inter-state complaint procedure
 Individual complaint procedure
 Inquiries and other procedures
2)Regional Human Rights systems
The African Human Rights System- In June 1981, the ACHPR was unanimously
adopted at the Nairobi Assembly of Heads of states and Government of the OAU. It
became operative in October 1986, and an African Commission (An 11 member) began
functioning on 2 November 1987.
In 1998, the thirty-fourth summit of Head of State and Government of the OAU adopted
a protocol to the ACHPR for the establishment of an African Court on Human and
People’s Rights.
The Arab and Asian Human Rights System- The Arab and Asian states have not yet
created regional human rights regimes, but some steps have been taken in that direction.
In Asia, despite efforts by NGOs and the U.N., governments in the region have been
unwilling in general to ratify global human rights instruments, or create a regional
human rights system.
Chapter three: Systems of Protection for Vulnerable Groups

54
There are particular groups who, for various reasons, are weak and vulnerable and
consequently require special protection for the equal and effective enjoyment of their
human rights.
Twelve groups are discussed: 1) women and girls; 2) children; 3) refugees; 4) internally
displaced persons; 5) stateless persons; 6) national minorities; 7) indigenous peoples; 8)
migrant workers; 9) disabled persons; 10) elderly persons; 11) HIV positive persons and
AIDS victims.
Women’s rights
After the Second World War, a number of treaties on the protection of women were
drafted and both the UN Charter and the International Bill of Human Rights proclaim
equal rights for men and women and ban discrimination on the grounds of sex.
In addition to instruments relating to discrimination in general, a whole series of

instruments have been developed specifically for the protection of women, the
elimination of discrimination against women and the promotion of equal rights.
CEDAW calls for national legislation banning discrimination. It allows for temporary
special measures (‘affirmative action’) to accelerate the achievement of equality in
practice.
On 6 October 1999, the General Assembly adopted an Optional Protocol to the

CEDAW. It establishes a procedure that allows individual women, or groups of women,
to submit claims of violations of rights protected under the Convention to the CEDAW
Committee- treaty body suervising & interpreting obg/n imposedd by the CEDAW.
UN Convention for the Suppression of the Traffic in Persons and of the Exploitation of
the Prostitution of Others (1949), the UN Convention on the Political Rights of Women
(1952) and the UN Convention on the Nationality of Married Women (1957), the Rome
Statute of the International Criminal Court (1998)
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The rights of the child
In 1924, the League of Nations adopted a Declaration on the Rights of the Child
(Declaration of Geneva), containing five basic principles reflecting the clear consensus
that children were in need of special protection.
In 1959, the UNGA unanimously adopted another more elaborate Declaration on the
Rights of the Child, stating in the preamble that ‘the child, by reason of his physical and
mental immaturity, needs special safeguards and care, including appropriate legal
protection, before as well as after birth’.
Serious work on drafting a convention on the rights of the child began in the final years
of the 1970s, resulting in the UNGA adoption of the Convention on the Rights of the
Child (CRC) on 20 Nov. 1989. As of July 2004, 192 states had ratified it. (The United
States and Somalia are the only UN members who not )
The 4 General, Cardinal or Fundamental Priniciple of Child rights in CRC

-The principle of non-discrimination (Article 2);
· The best interests of the child (Article 3);
· The right to life, survival and development (Article 6); and
· Respect for the views of the child (Article 12).
The CRC establishes the Committee on the Rights of the Child to supervise the progress
made by the states parties in achieving the realisation of their obligations contained in
the Convention.
United Nations Children’s Fund (UNICEF), one of the key organisations concerned
with children’s rights. child rights are part of millinimum dev't goals.
The rights of indigenous people

Theyhave only after World War II become the subject of international human rights
debate.

56
Similar to the case of minorities, the diversity of indigenous peoples impedes a
definition. The indigenous differ enormously in cultures, religions, and patterns of
social and economic organisation
The first international standard on indigenous populations was ILO 107 (1957), revised
and reformulated in 1989 and amended in ILO 169.
Since the 1970s, the United Nations has been involved in initiatives, frequently in co-
operation with the ILO and the OAS, concerning the development of specific standards
for the protection of indigenous peoples. In 1982, the UN Working Group on
Indigenous Populations was created as a body of the Sub-Commission for the
Prevention of Discrimination and Protection of Minorities
The Working Group on the Draft Declaration on the Rights of Indigenous Peoples,
which was established by the UN Commission on Human Rights, has been debating the
draft Declaration on an article-by-article basis, with the participation of a number of
organisations of indigenous peoples.
The Declaration was to be adopted by the UN General Assembly in December 2004 at
the end of the decade of the rights of indigenous peoples. However, as of July 2004,
there was still no consensus on a draft text; indigenous peoples and governments differ
on issues related to the right to self-determination, collective rights and the exclusive
right to use natural resources.
At the UN treaty-based level, the Human Rights Committee has been called upon
several times by indigenous persons to decide on possible infringements of their human
rights.
Three charter-based bodies have been established to deal with issues relating to
indigenous peoples at the UN: a) the Special Rapporteur on the Situation of Human
Rights and Fundamental Freedoms of Indigenous People, b) the Working Group on
Indigenous Populations, and c) the Permanent Forum on Indigenous Issues.
Protection of disabled persons

57
international human rights instruments protect the rights of persons with disabilities
through the principles of equality and non-discrimination.
The UDHR refers expressly to disabled persons, stipulating in Article 25 that ‘everyone

has the right to security in the event of [...] disability’, but nor its derivatives,
the ICCPR and ICESCR.
the ACHPRs stipulates in Article 18(4) that the disabled shall be entitled to special
measures of protection. The European Social Charter (revised), Article 6 of
the Protocol of San Salvador stipulate
Two international conventions dealing directly with the rights of disabled persons have
been drafted r
One is the Inter-American Convention on the Elimination of All Forms of

Discrimination Against Persons with Disabilities 1999) (see 2.3), the only regional
convention of its kind in the world & ILO 159 concerning Vocational Rehabilitation
and Employment (Disabled Persons) (1983).
Specific non-binding instruments have also been adopted at the international level
addressing the rights of disabled persons. These include the Declaration of the Rights of
Mentally Retarded Persons (UNGA Resolution 26/2856 (XXVI), 1971); the Declaration
on the Rights of Disabled Persons (UNGA Resolution 30/3447 (XXX), 1975);
the World Programme of Action concerning Disabled Persons (UNGA Resolution
37/52, 1982)
Elderly Persons
As the world’s population ages and the traditional role of the family as the main support
of older people weakens, the elderly are increasingly vulnerable to abuse and various
forms of negative stereotyping and discrimination.
- the rights stipulated for the elderly in international instruments stem from the
principles of dignity and non-discrimination.
Neither the UDHR nor its derivatives, the ICCPR and ICESCR , contain any explicit
reference to older persons, but many provisions of these instruments are of direct
relevance to ensuring equal opportunities and the full participation of the elderly.

58
Three regional human rights instruments expressly mention older persons as a group in
need of special protection r , Article 18(4), the African Charter , The Protocol to the
African Charter on the Rights of Women in Africa & Article 17 of Protocol San
Salvador.
In 1992, the General Assembly adopted the Proclamation on Ageing.
In 2002, the 2nd World Assembly on Ageing adopted a 2nd International Plan of Action
on Ageing.
Refugees
In the aftermath of World War II, the international community included the right to seek
and enjoy asylum in the 1948 Universal Declaration of Human Rights. In 1950, the
Office of the United Nations High Commissioner for Refugees (UNHCR) was created .
in 1951, the United Nations adopted the Convention Relating to the Status of Refugees.
The Protocol relating to the Status of Refugees (the 1967 Protocol) helped to widen
the definition of a refugee, as it lifted the time and geographic limits found in the 1951
Convention.
Principle of non-refoulment in Refuge law- means u will not be sent back(deported)
Stateless persons
Nationality is not granted indiscriminately, but is normally based on factors such as the
place of birth of a person, parentage or the relationship a person has established with a
state through, for example, marriage to a national or long-term residence there.
A stateless person is the person who is not considered a national of any state under
operation of its law. Statelessness occurs for many different reasons.
A person may loose her/his nationality and is not able to acquire a new one because of
extended stay abroad or because of marriage or dissolution of marriage to a person of a
different nationality.
The two primary international conventions on statelessness are the Convention relating
to the Status of Stateless Persons (1954) and the Convention on the Reduction of
Statelessness (1961).

59
Ozers r Convention on the Nationality of Married Women (1957), CEDAW (Article 9)
and CRC (Articles 7 and 8).
At the regional level, the American Convention on Human Rights (1969) and the
European Convention on Nationality (1997) underline the need of every person to
have a nationality.
Similar to the situation of IDPs(Internal displaced persons- who don't cross boarder) ,
there is today no specific body that deals with the problem of statelessness, or that
supervises the 1954 and 1961 statelessness conventions. In order to fill this vacuum,
upon the entry into force of the Convention on the Reduction of Statelessness in 1975,
UNHCR was provisionally asked to assume the responsibilities.
Migrant workers
Historically, the rights of migrant workers have fallen under general diplomatic
protection, based on the international law governing the treatment of non-nationals.
In 1990, the UNGA adopted the International Convention on the Protection of the
Rights of All Migrant Workers and Members of Their Families.
It provides for the establishment of a Committee. In 1997, the UN Commission on

Human Rights established the Working Group of Intergovernmental Experts on the
Human Rights of Migrants with a mandate to gather all relevant information.
in 1999 the Commission appointed a Special Rapporteur on the human rights of

migrants.
HIV Positive Persons and AIDS Victims

The incidence of HIV/AIDS is disproportionately high in groups who already suffer
from lack of protection and discrimination; such as women, children, those living in
poverty, minorities, refugees and internally displaced people.
The key human rights principles are to be found in ICESCR; ICCPR; CEDAW; CAT;
CERD; and the CRC . the Paris Declaration on Women, Children and AIDS (1989).
At the regional level, the American Convention on Human Rights, the European

Convention for the Protection of Human Rights and Fundamental Freedoms and the
African Charter on Human and Peoples’ Rights also enshrine general state obligations.
60
The UNGA has emphasised the need to counter discrimination and to respect human
rights of people with HIV/AIDS in several resolutions & The UN Commission on
Human Rights doing z same.
The Office of the United Nations High Commissioner for Human Rights (OHCHR) and
the joint United Nations Programme on HIV/AIDS (UNAIDS) have developed
guidelines to assist states.
Chapter Four: Culture, Globalization and Human Rights
Section One: Culture and Human Rights
Universal Human Rights and Cultural Relativism

Cultural relativism is the assertion that the promotion, protection, interpretation and
application of human rights which could be interpreted differently within different
cultural, ethnic and religious traditions. human rights are culturally relative rather than
universal.
Accordingly, the promotion and protection of human rights perceived as culturally
relative would only be subject to State discretion, rather than international legal
imperative.
Based on universal perspective human rights are the natural-born rights for every
human being, universally. They are not privileges.
human rights are for all human beings, regardless of "race, colour, sex, language,
religion, political or other opinion, national or social origin, property, birth or other
status".
The denial or abuse of human rights is wrong, regardless of the violator's culture.
UN as proclaimed in its Charter, which states that human rights are "for all without
distinction".
The Charter further commits the United Nations and all Member States to action
promoting "universal respect for, and observance of, human rights and fundamental
freedoms".
61
consensus is embodied in the language of the Universal Declaration itself.\
Human Rights, Cultural Integrity and Diversity
Like most areas of international law, universal human rights are a modern achievement,
new to all cultures. Human rights are neither representative of, nor oriented towards,
one culture to the exclusion of others.
universal human rights emerge with sufficient flexibility to respect and protect cultural
diversity and integrity.
Most directly, human rights facilitate respect for and protection of cultural diversity and
integrity, through the establishment of cultural rights embodied in instruments of human
rights law.
Every human being has the right to culture, including the right to enjoy and develop
cultural life and identity. Cultural rights, however, are not unlimited.
cultural rights do not justify torture, murder, genocide, discrimination on grounds of
sex, race, language or religion, or violation of any of the other universal human rights
and fundamental freedoms established in international law.
Section two: Globalization and Human Rights
Because of this more people are crossing borders in search of jobs and in most
conditions people are forced to work in inhuman conditions for lower wages.
The transnational companies are the spearheads of globalization and have become the
dominant economic and political force in the world economy.
Globalization has substantially contributed to the intensification of debt, poverty and
economic crisis in the developing world.
Human rights have become an integral part of the process of globalization in many
ways. The Western countries are increasingly using their view of human rights concept
as a yardstick to judge developing countries and to deal with economic and trade
relations to extend development assistance.

62
The aims and objectives of the so-called development models promoted by different
governments or international development agencies are not compatible with human
rights standards.
Human rights have entered the already numerous criteria for allocating aid fairly
recently. this entry has been neither easy nor smooth because no general criteria have
been developed by donors and consequently decisions have been made on case-to-case
basis.
several developed countries in the world have been trying to inter-relate trade policy
with human rights policy. The case of China has been controversial, with opinion in the
United States sharply divided on the desirability of conditioning trade preferences on
compliance with specified human rights.
Keeping millions of Chinese in poverty by restricting their right to trade, in the hope of
promoting human rights, is neither logical nor moral. Likewise, depriving Americans of
the freedom to trade and invest in China violates their rights to liberty and property”.
Impact of Globalization on Human Rights
The Human Development Report of 1997 revealed that poor countries and poor people
too often find their interests neglected as a result of globalization.
it ultimately causes increased impoverishment, social disparities and violations of
human rights.
CHAPTER Five: RESPONSES TO GRAVE VIOLATION OF HUMAN RIGHTS
Section One: National responses -Transitional Justice
The international system of addressing violations becomes relevant if the domestic
system is unable/unwilling to provide remedies.
Regime change is a prerequisite for putting the national mechanism of responding to

such violations.
- transitional justice means justice at the time of transition.

63
Societies in transition may have variety of needs/concerns related to past violations.
-The need for justice - The need to know the truth - The need for conciliation
The modalities of transitional Justice
-Prosecution - Truth & reconciliation - Amnesty

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

Criminal Court.
4 FEDERALISM
Chapter one
The Context of the Federal System in Ethiopia
Part One- HISTORIC ETHIOPIA AS A DE FACTO FEDERATION

64
Except for the twentieth century, a cursory reading of history reveals that Ethiopia has for the
most part been under a decentralized rather than a centralized system of governance.
One observes a co-existence of a duality of authorities, mainly that of the Imperial throne,
representing the center and a number of provincial nobilities effectively exercising decentralized
power.
- regionalism or provincialism, one essential element of diversity that defined the Ethiopian state,
characterized the relationship between the center and the provinces.
The cluster of kingdoms existed effectively for centuries until they were finally incorporated into
the Ethiopian state in the second half of the 19 th century. there always existed a network of trade
relationships as well as relationships based on religion. The imperial throne served as a symbol of
unity and the political system combined a balance of forces between the monarchy and regional
nobility.
The process of centralization, modernization, nation building shined during Haile Silassie.
the religious, lingual, cultural as well as political and economic dominance gave birth to the
‘question of nationalities.’the state failed to accommodate them.
THE PROCESS OF CENTRALIZATION (1930-1991)
*The Era of Written Constitutions
The 1931 Constitution- The first measure the Emperor took along the process of centralization
was the grant of the Constitution.
the Constitution’s major outcome was its ability to establish the legal framework within which
governmental power was to be channeled and distributed. It was aimed against the personal,
arbitrary and ill-defined powers traditionally held by the nobility.
The 1955 Revised Constitution- continued to reinforce the process of centralization.

65
a significant political factor that influenced the revision of the 1955 Constitution was The Ethio-
Ertirean federation.
Interestingly enough it also contained an elaborate regime of civil and political rights for the
subjects.
A basic development was the introduction of the representative principle for the chamber of
Deputies whose members were elected on the basis of universal adult suffrage.
- was a legal charter for the consolidation of absolutism.
The 1987 Constitution-The draft constitution was completed in 1986 and was formally submitted
to public debate and ratified by a referendum in February 1987.
In an election in which a single party, WPE members, participated members of the National
Shengo (parliament) were elected.
The Constitutionstated that Ethiopia is a unitary state constituting administrative and autonomous
regions.52 It stated that the nationalities are equal and ensured the equality of nationalities.
each nationality would have regional autonomy to decide on matters concerning its affairs.Eritrea
but without its Afar inhabited areas, Tigray, Assab for the Afars, Dire Dawa for the Issas, and
Ogaden.
the WPE/working party of Ethiopia played this role and in the end not even the minimal versions
of self-autonomy were put into practice.The Constitution in dealing with regional autonomy did
not offer any hope in terms of reconciliation for peace with the opposition.
*THE TRANSITIONAL PERIOD (1991-1994)
a national conference for this purpose was convened in Addis Ababa from July 1-5, 1991. The
Conference resulted in the signing of the Charter by the representatives of some 31 political
52
See Article 59.
66
parties, the creation of an 87 seat Council of Representatives and the establishment of
Transitional Government of Ethiopia (TGE).
The Charter established the framework for the provisional government and guaranteed
nationalities to preserve their identity, administer their own affairs within their own defined
territory, the right to participate in the central government based on fair and proper representation,
and the right to self-determination.
The establishment of national regional self-governments was provided for in another

proclamation.the proclamation enumerated sixty-four identified nations, nationalities and peoples
and set up fourteen regions.
The striking point is that nowhere do the charter and the proclamation employ the term federation
in either their preamble or specific legal provisions, although both documents ensure each
nationality with the right to self-determination including secession.
If one looks at the legal framework from the angle of a federal system, there is no doubt that the
balance swayed in favor of the center. the enumeration of the powers of the central government
was not exhaustive and contained broad terms.
In the language of the Charter, the Transitional Government shall exercise all legal and political
power for the governance of Ethiopia. In no unequivocal manner, the proclamation also stated
that national regional transitional self-governments are in every respect, entities subordinate to the
central TFG.
One of the major tasks of the transitional Council of Representatives was to direct the process of
constitution making and pave the way for a new national election based on the ratified
constitution.
*there is a widely held view that considers constitutions merely as instruments for promoting the
political will of the victorious ones/ruling elites of the time and not of the people per se and hence
are viewed as instruments of submission, hence the saying “Negus Aykeses Semay Aytares”.
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*Many of the constitutions have not been results of negotiated outcomes or of a publicly held
consensus.
Chapter Two
Some Common Features among Federations
INTRODUCTION
in the contemporary world, federalism as a political idea remains still popular for reconciling
unity and diversity under a single political system. (despite USSR & Yugoslav case)
Federalism as a political concept and federations in the form of institutions seem to provide ‘the
closest institutional solution’ combining shared rule for some commonly shared purposes and
self-rule for other purposes of regional interest in the world today.
federalism is also getting popular because it is employed as a means of solving ethnic conflicts.
FEDERALISM AND FEDERATIONS
Within the context of the older federations, federalism might mean the joining together of some
semi-autonomous units for some common goals.
Within the context of the EU it might refer to the coming together of the bulk of European states
and the emergence of new institutions combining confederal as well as federal features.
Within the context of former communist federations, federalism may mean the existence of some
features associated with the division of powers in constitutional form rather than in operational
reality.
In the African context, federalism is associated with the colonial experience of divide and rule. It
means different things to different people depending on historical and cultural context.
*federalism refers to an ideology: a normative principle, while federations refer to institutions.

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Federation is descriptive concept referring to the actual system of governments.14 Federalism as a
political philosophy is essentially an organizing principle.
Federations constitute the institutional and structural techniques for achieving one of the goals of
federalism.
-In confederation the central government had no direct authority to act upon the people.
confederations occur when several pre-existing polities join together to form a common
government for certain limited purposes such as foreign relations and defense, but the common
government is dependent upon the states.
-As opposed to confederations, in decentralized governments the units, often called local
governments, are subordinate to the center. However wide powers they may exercise, the local
governments are merely creations of the center by a statute and as a result they may be wiped out
by the center at any time.
-in decentralized systems, the emphasis is on self-rule rather than on shared rule. In a federation,
the division of power is constitutionally guaranteed and the states are not creations of the federal
government. Both the federal government and the states derive their authority from the federal
constitution and as a result neither level can change the terms of the compact as enshrined in the
constitution.
SOME COMMON FEATURES AMONG FEDERATIONS
*Division of Power- leg, exec, judicial & financial functions is constitutionally divided b/n the
federal govt &the states,& that both orders of govtare autonomous with respect to the powers
granted to them.
*Written and Supreme Federal Constitution- Federations originate from particular bargains.
Written constitutions are, therefore, necessary records of the terms of the bargain. to write and
adopt a constitution is to agree to the bargain itself.
4
14 King, supra note 11 at 74.
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The terms of the agreement, which establish the federal government and the states and which
distribute powers between them, must be enshrined in a supreme federal constitution, which is
binding.
It is supreme federal constitution b/c from w/c the federal govt and the states derive their
authority.
-Federalism is a covenant b/c federations are considered to have resulted from the federal idea of
compact, implying an agreement that is freely and mutually consented to.
But the assertion that federations are based on contracts needs to be adopted with a serious
qualification.
1st, federations unlike confederations are not exclusively based on the presumed existence of
sovereign states.
2nd, even referring to the states, they do not in all cases freely agree to enter or remain in the
union.
3rd, even if it results from contracts, it still has a unilateral character. If we focus on the center-
seeking federations (as in Switzerland and the US), the central government, crucial for the
federation is absent during the federal bargain.In centrifugal federations (qedmo begara yenoru
gizatoch yalubet Eth.), it could be said that the states are absent during the federal bargain. b/c
they were not in existence unlike Confederations.
*Rigid Constitution- it must be rigid and require the participation of both the federal government
and the states for their amendment.
Constitutions change and adapt and an agreed method for achieving constitutional adjustments as
the need arises is often the key to the continued success of the federation.

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constitutionsare amended according to procedures that differ from z procedures for amending
ordinary laws.The Ethiopian Constitution is perhaps more rigid compared to the other federations.
art. 104 of FDREC- 3/4 vote- extra ordinary amendment procedures.
*Umpiring the Federation- thepower to seethe constitutionality of laws& settlement of disputes

is vested to an impartial body, independent of the federation and the states.
There must be an umpire to rule on the interpretation of cases involving the division of power
specifically and on the rule of constitutionality in general.
In US Supreme Court, in Switzerland through a referendum, In Germany the Constitutional

Court, In Ethiopia the HoF.
*Origin of Federations and Territorial Autonomy of the States- The fact that federalism is
considered the territorial distribution of power presupposes that the states have a stable territory.
- in centrifugal federations there is a tendency to think that the states prior to the establishment of
the federation or during the formative stages did not reflect major diversities that define the states
and demands for territorial adjustments.
-centrifugal or ‘holding together’ federations are federations resulting from either a previously
unitary state or a retiring colonial state.
-‘coming together’ federations are existing states are there. they are center-seeking federations
*Existence of two or more orders of government
* there should be bicameral house- upper and lower- art 53 FDRE c
* intergov'tal relations - formal or informal
Chapter Three
Federations and Second Chambers
RATIONALE
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Within Bicameral legislatures, federations are designed carefully with institutions that reflect the
people as a whole on the one hand and the people as parts, often identified as states, on the other.
Representation by territories and representation by size of population as distinct principles,

operate in federations.
the lower house is often uniformly organized on the principle of proportional representation and
there is a less strong federal element in it. But the upper chamber is often expected to reflect
some federal idea and its legislative role is defended.
The first rationale emanates from the qualified application of the concept of sovereignty in
federations, limit majority rule.Second chambers in federations provide a protective mechanism to
smaller and more sparsely populated units feel potentially threatened by more densely populated
states.
The second explanation emanates from division of power, in itself is premised on the idea that
federations are principally organized on the concept of ‘self-rule’ for some purposes and ‘shared-
rule’ for other purposes.
Self-rule means that an entity can decide certain matters autonomously over competencies within
an overarching federal system.
Shared rule refers to shared competencies as well as shared institutions through which federal
units are accorded special participation and input in the decision-making process at the level of
the encompassing entity.
*The FDREC, in the sense of having two chambers, the legislative power of the latter is very
much contested. The only provisions where one may by stretch of imagination trace legislative
functions are Articles 99, 62(7) and 105.
It declares: ‘The HPR shall have the power of legislation in all matters assigned by this
Constitution to Federal jurisdiction.’

72
for the nationalities, the right to be represented in federal government stipulated by Article 39(3)
could not be pushed further to include the federal legislature. unlike the other federations, the
Ethiopian Constitution fails to entrench the states or to use the terms of the Constitution, the
nations, nationalities and the peoples to be part of the federal law-making process.Art 39(3) is for
the representations in the executive, HoF & other federal organs.
*Ethiopian Constitution ‘betrays’ the federal idea significantly. The territorial units have neither
the minimum participatory role nor the even greater functions assigned to upper chambers.being
hijacked by a few more populous ethnic groups.
*It betrays federal principle (incorporation of the states in the federal law-making process and
federal practice) b/c HoF has no power of law making. Nor equitable representation can be
applied in the HPR.
COMPOSITION
The principle of equality of regions- In the United States, the Senate embodying the principle of
equal representation of the states, notwithstanding disparities in their population, was the price
that the larger states had to pay for the participation of the smaller states in the federation.
Accordingly, each of the 50 states enjoys formal equal representation in the upper house/senate.
The less populous states often fight to safeguard their interests from being swamped by the
legislature composed by a popularly elected lower house. Accordingly, second chambers based on
equal state representationare instituted to take care of the concerns of the less populous states.
The same principle is adopted under the Swiss Constitution, except for introducing the notion of
full and half Cantons.Six half Cantons elect one and the remaining twenty each shall elect two
senators.
The principle of equality of citizens -the Indian Constitution and German Basic Law represents a
different principle that tries to balance the interests of the most populous states on the one hand
and those of the less populous ones on the other.(provides a list of states and the corresponding
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seats allocated to each state. eg. In Germany - no matter how, one lander has 3 representatives, 2
upto 6 million = 4 representatives, > 6 million popn= 5 representatives)
Dilemma in Eth (has unique structure)- Article 61(2) of the 1995 Constitution stipulates ‘each
Nation, Nationality and People shall be represented in the House of Federation by at least one
member. Each Nation or Nationality shall be represented by one additional representative for each
one million of its population.’
the organizational principle of the HoF is the same with the HPR except that there is a significant
difference in the number of constituencies, 100,000 for the former and one million for the latter.
*the nearly majoritarian HoF in Ethiopia, minority protection in the US and Switzerland, the
German and Indian Houses balancing the tension between territorial and citizen equality, in
between.
SELECTION OF MEMBERS
In the Ethiopian situation Article 61(3) envisages two possibilities. Members of the House of
Federation may be elected indirectly by the state legislatures or the state legislature may decide
the members to be elected directly by the people. So far experience indicates that all members are
indirectly elected by the states.
In the US (until 1913) and Switzerland, at least initially, representation is based on the territorial
principle and theoretically speaking the two representatives are expected to stand for the interests
of the states.
In the US ,Since then, it is doubtful whether the Senators represent the interest of the citizen, the
state or some regional interest such as the mid west, east or the south, as the citizen directly elects
them.
Article 61(1) of the Ethiopian Constitution provides that the HoF is composed of representatives
of nations, nationalities and peoples.

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POWERS
in the US and Switzerland where the two chambers are co-equal in power and are directly elected.
in the United States all legislative powers are vested in both houses.
It has equal powers in all bills including money bills, except that it is introduced in the House of
Representatives. the advice and consent of the Senate (two-thirds vote) is a requirement for the
approval of treaties concluded by the President. The Senate has a similar role in the appointment
of ambassadors, or other ministers, consuls, and judges of the Supreme Court.
The Swiss Council of States is equally empowered in all legislative affairs.
In the German federation a bill requires the consent of the upper chamber (Bundesrat) if it has
financial implications or affects the duties of the Länder.
German federalism is often uniquely described as ‘executive federalism,’ signifying the fact that
federal government is predominantly responsible for legislating most of the laws while the states
are responsible for implementing such laws.Bundestag/lower house
The second chamber of India (council of states) with subsidiary power and playing a precipitate
function in the law-making process.
It enjoys an even greater authority, going beyond the co-equal legislative role, compared to the
lower house. ‘bills shall not be deemed to have passed by the houses of parliament unless it has
been agreed to by both houses. . .
The Ethiopian HoF has completely different role. It does not have a legislative function. Some of
the important powers conferred to the House under Article 62 include constitutional
interpretation(political rather than a judicial function) and organizing the Council of
Constitutional Inquiry.
It is perhaps in the area of fiscal federalism that the HoF could be considered important.
THE ROLE OF THE HOF IN INTERGOVERNMENTAL RELATIONS

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

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

Its Implications
Unlike many constitutions, the Preamble of the Constn does not commence with the traditional
constitutional formula of “we the people,” but with “We the Nations, Nationalities, and Peoples
of Ethiopia”
“All sovereign power resides . . . , right to self-determination, takes the territorial principle
seriously,seven out of the nine constituent states (the only exceptions being the SNNPRS and
Gambela) are named after the major nationalities that “dominate”, AA & DD areless autonomous
compared to the constituent states b/c accountable to the fed govt,
*Shared Rule

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*Unicameral Legislature/Adjudication of Disputes- the second/upper chamber (HoF) is not
part of the law making process at federal level. federal law does not need the consent of the HoF,
to be a law.
the Ethiopian federal system departs from this trend and grants the HoF among other things with
the power to interpret the Constitution, resolution of disputes among the regions, decide on
intergovernmental subsides and joint taxes.
Some of the Contending Views on the Federal System- contradictory perspectives
The first group -the “ethnic” federation as a sign of the first mark of disintegration.“regionally
based ethnicity may reinforce the demands of some ethnic groups for more and more states and
finally for secession.
The second group - the paradox between generously granted constitutional powers and a
centralized federal system in practice resulting from centralized policy making process and a
dominant ruling party system that is responsible for generating most of the policy documents.
The third groups-Ethiopia's multicultural and multi religious context, the present federal system is
the only panacea to the country's age old political crisis as it provides a decisive remedy for
Ethiopia’s long-standing problem of the “nationality question”.
Federalism and the Treatment of Minorities in the Regions
The notion of majority and minority in the Ethiopian federal context is indeed confusing.
The minority are nationals of the state of residence and posses ethnic, linguistic or religious
characteristics (identity stuff) that distinguish them from the rest of the population.
Chapter Five
Division of Legislative Powers
THE FORM AND SCOPE OF DISTRIBUTION OF LEGISLATIVE POWERS

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By formsof distribution of legislative power we are referring to the ways in which these powers
are constitutionally allocated between the federal government and the states. (the technique of
allocation of power.)
While the scope of legislative powers refers to the areas and amount of jurisdiction assigned to
each order of government. (the substance of power allocated)
The constitutional allocation of legislative power is defined on the basis of three categories,
namely exclusive powers (of the federal government and/or of the states), shared powers and
reserve powers.
the use of exclusive powers refers to the powers for which the federal constitution has created a
monopoly, which either is in the hands of the federation or of the states.
-The Ethiopian Constitution in general follows the United States and Swiss forms of distribution
of powers. According to Article 50(2) ‘the federal government and the states shall have
legislative, executive and judicial powers.’
-Shared Powers
*framework legislation has been prescribed for the exercise of a power, a special type of shared
power exists that in principle grants the federal government the competence to issue general
legislation in a specific policy field.
It is to regulate federation-wide standards while leaving the states room to legislate the details and
to deliver the services in a manner adaptable to local situations.
Although it has traditionally been argued that the Ethiopian Constitution has no shared powers
except in the area of taxation, it is clear that it provides some provisions dealing with framework
powers. Art 55(6) the HPR is empowered to enact civil laws, w/c the HoF deems ‘necessary to
establish and sustain one economic community’.
51(3) - fed gov't shall establish national standards, detail left for the state gov.

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(civil lawis a matter reserved/ residual power to the states unless it is decided by the HoF as
exclusive power of Fed gov't.) & Art 51(2) and sub (3) versus 52(2) c(concurrent power), Articles
52(2) b&d(Exclusive power of State), 55(2) a, and 51(5)
*concurrent powers As one category of shared powers, it refers to powers attributed to both
entities.the general thinking about shared powers has been that Article 52(1)
one author notes that there are no concurrent powers in Ethiopia except on tax matters.However,
it is still possible to argue that even in other, non-tax fields, Eg The states may, however, enact
penal laws too on matters that are not specifically covered by the federal penal legislation.
Concurrent power of state with fed gov't is Emergency/55(5), 51(2) + 52(2) c - to establish
equal living conditions throughout the country.
The Ethiopian Constitution is silent as far as the thorny issue of regulating the relationship
between federal and state law in general and in relation to shared powers in particular is
concerned. (in case of conflict between state and federal law.)
two views- If one adopts the federal supremacy clause by default, then most of the principles
stated in this section discussing shared powers in other federations, will hold true in Ethiopia as
well.
But if one adheres to the ‘supremacy of nations, nationalities and peoples’ literally because of the
principles stated on the preamble, the pretentious aggregate nature of the federation, Articles 8
and 39, then it may be difficult to state that federal law will pre-empt state law.
-Residual powers represent those powers not listed or partly listed by the constitution and
assigned to either unit of government. The Ethiopian Constitution expressly confers residual
powers on the states. The Constitution enumerates a list of seven jurisdictions given to the states
in addition to the reserve clause. One may doubt the relevance of the enumeration of state powers
as the states are granted reserve powers.

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-frequency of federal intervention, the grounds for intervention and the effects of such
intervention
(Art 359/2003) *federal government] shall deploy at the request of a state administration, federal
defense forces to arrest a deteriorating security situation within the requesting state when its
authorities are unable to control it.
* the HPR shall on its own initiative request a joint session of the HoF and of the HoPR to take
appropriate measures when state authorities are unable to arrest violations of human rights within
their jurisdiction.
*HoF shall order under Article 62(9) federal intervention if any state, in violation of this federal
constitution endangers the constitutional order.
Chapter Six
Division of Executive Power and Intergovernmental Relations
DUAL VERSUS EXECUTIVE OR FUNCTIONAL FEDERALISM
federal systems enforce their laws and policies by setting up dual structures, federal and state
institutions or by entrusting the state machinery with the power to enforce both federal and state
laws.
executive power is co-extensive with the legislative power. FDREC states: ‘The federal
government and the states shall have legislative, executive and judicial powers.
It is true that there are some federal executive organs organized throughout the country to enforce
federal laws, eg ERCA, Post Office, Insurance, Banking, Tele, Public Prosecutor, Some
Ministries.
Dual Federalism - represented by the United States federation, where the allocation of executive
authority is in principle considered co-extensive with the distribution of legislative
responsibilities.

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it follows that not only legislative but also executive, financial and judicial powers should be
divided between the federal government and the states so that each will act autonomously.
Executive/functional Federalism - The second possible arrangement of the executive. Germany

and Switzerland and to some degree in India. federal govt is for the most part responsible for law-
making while the states are for administering it.
administrative responsibility has not coincided with legislative authority. Administration for
many areas of federallegislative authority is constitutionally assigned to the govern ments of the
units.
THE SYSTEM OF INTERGOVERNMENTAL RELATIONS IN ETHIOPIA
*Delegation- FDREC seems to provide for downward delegation only. It is silent as to whether
the states can delegate their powers to the federal government.
the fear that upward delegation might affect the autonomy
*Co-operation through Executive Institutions
The political relationship between the federal government and the states is regulated by both
formal structures weakly defined in the constitution and various proclamations as well as practice
outside the legal framework. Eg Ministry of Federal Affairs.
the federal government provides the emerging states with additional support and this placed them
under the Prime Minster’s scheme of formerly the Office for Regional Affairs and presently the
Ministry of Federal Affairs, which oversees their political development.
the Ministry in its conflict handling power, there is certainly an overlap with what is stated under
Articles 48 and 62(6) of the Constitution on the powers of the HoF. The general scope is that the
HoF does the legal aspect of the conflict but the Ministry of Federal Affairs handles
administrative, political and developmental affairs with the states.

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Co-operation through Party Channels- not unique to the Ethiopian federation.A political party
is expected to harmonize the policies of the federal government and constituent states.
If the officials of both sets of government are adherents of the same ideology or followers of the
same leader or leaders, then they might be expected to pursue harmonious policies.
the EPRDF is controlling all the regional state governments in the Ethiopian federation; either
directly through the member parties or indirectly through affiliated parties.
the party structure in Ethiopia undermines the federal division of power and subordinates the
regional governments to the federal government, centralizing trend in the federal system,
intergovernmental conflicts are rare, perhaps absent.
*Co-operation through the Process of Policy-Making
states accept the economic, social and development plans issued by the federal government. In
theory they can adapt the policies to fit their own circumstances but the federal government does
play a key role in influencing through national policies.
Chapter Seven
Federalism and the Adjudication of Disputes
Constitutional Adjudication in Ethiopia: Exploring the Experience of the HoF
Art 62 and 83, the HoF is not only empowered to decide constitutional disputes but also to
interpret the constitution.
The rationale can be gathered from the minutes of the Constitutional Assembly emanate from
two sources. A) One is related to the framers view of the ‘nature’ of the constitution in general
and to the role of the nationalities in particular.
The framers think that the new federal dispensation is the outcome of the ‘coming together’ of the
nationalities. Indeed, it is clearly stipulated in the preamble and Article eight that the ‘nations,

83
nationalities and peoples are sovereign.’ The Constitution is considered as the reflection of the
‘free will and consent’ of the nationalities. It is, in the words of the framers, ‘a political contract’
and therefore only the authors that are the nationalities should be the ones to be vested with the
power of interpreting the constitution. To this effect, the HoF that is composed of the
representatives of the various nationalities is expressly granted the power to review the
constitutionality of laws and of course other essential powers as well.
B) The second reason is related to the first. The framers were well aware of the fact that
empowering the judiciary or a constitutional court may result in unnecessary ‘judicial
adventurism’ or what some prefer to call ‘judicial activism’ in which the judges would in the
process of interpreting vague clauses of the constitution put their own preferences and policy
choices in the first place., this might result in hijacking the very document that contains the
‘compact between the nationalities’ to fit the judges’ own personal philosophies.
ORGANIZATION OF THE JUDICIARY IN A FEDERAL SYSTEM
the Ethiopian judicial system theoretically speaking is organized on a dual basis in which there
are two parallel court systems, the federal courts and the state courts with their own independent
structures and administrations.
There is a question as to whether the division of power inherent in federalism applies for judicial
power to the extent of requiring each order of government to have its own court system.
On the one hand there is the view that state courts subject to review by the Supreme Court are
sufficient to protect the interest of the federal government.
On the other hand, there is a view that federal courts like federal executive agents are desired to
effectively implement the power of the federal government.If one takes the federal principle of
division of power strictly, not only are legislative and executive functions divided between the
federal government and the states, but judicial authority too is divided.

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FDREC gives some hint about the organization of the judiciary. it states that supreme federal
judicial authority is vested in the federal Supreme Court. It is only one Court with nation wide
jurisdiction.
With the recent decision of parliament to establish inferior federal courts a full-fledged dual court
structure is on its way, at least in five regional states. As a result there are inferior federal courts
in some states while the delegated power seems to continue in three other states, Oromia, Amhara
and Tigray.
In a nutshell, there may obviously be, like other powers, exclusively federal, exclusively state and
shared judicial powers.
JURISDICTION
The Ethiopian judicial system, compared to other federations, stands constrained in its
jurisdiction.
Firstly, judicial powers are being taken away from the regular judiciary to special other tribunals
whose constitutional status remains controversial.
despite the constitutional clause under Article 78(4) stipulating that ‘special or adhoc courts
which take judicial powers away from the regular courts or institutions legally empowered to
exercise judicial functions, there are controversial tribunals introduced from time to time by the
federal legislature and they do seem to dismantle the courts jurisdiction.
(but still access to justice. It is stated ‘everyone has the right to bring a justiciable matter to and to
obtain a decision or judgment by, a court of law or any other competent body with judicial power)
While the tribunals are unavoidable they should either be autonomous or else the highest judicial
organ as in the supreme court should exercise judicial power on specific grounds. The trouble in
Ethiopia is that such tribunals are neither autonomous nor subject to review at a higher level.

85
although the judiciary arguably has power to interpret the constitution, it has no power of
reviewing the constitutionality of laws.
the judicial branch’s power of reviewing decisions of several other tribunals is far from clear and
the Court has not yet established it beyond doubt.
The Power of Cassation
*The minutes of the Constitutional Assembly also suggest that the federal Supreme Court has the
power of cassation not only over federal matters but also on state matters and even more
interestingly the federal Supreme Court reviews state matters in which the state Supreme Court
has rendered a final decision by way of cassation.
There is a contrary view saying practice should not justify the wrong interpretation of the law.
Ethiopia has adopted a dual court structure and the practice distorts the structural set-up of the
courts. This approach forces one to interpret ‘any court’ under Article 80 of proc 25/96 ( it must
be limited to the delegated function of the state courts.)
Basing the principle of federalism, when a matter is assigned to belong to a state jurisdiction it is
based on the view that the matter is of local rather than of national importance.
Guaranteeing uniformity is often limited to federal laws, and not to state laws.
5 UNIT-I
INTRODUCTION TO CRIMINAL LAW
Section 1: General Considerations:
The Place Of Criminal Law In Criminal Science:
Criminal Law is the body of law defining crimes against the community at large,
regulating how suspects are investigated, charged, and tried, and establishing
punishments for convicted criminals.

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“Crime” is an offence committed by an individual who is a basic unit of a society.
Therefore, study of crime i.e. Criminal Science” is a social study. The main aims of
Criminal Science are:
-To discover the causes of criminality,
-To devise the most effective methods of reducing the amount of criminality,
-To perfect the machinery for dealing with criminals.
Branches of Criminal Science are

A) Criminology: the study of crime and criminal punishment as social phenomena. &
concerned with causes of crimes.
1) Criminal Biology: investigates causes of criminality, which may be found in the
mental or physical constitution of the delinquent. e.g. physical defects.
2) Criminal Sociology: deals with enquiries into the effects of environment as a cause
of criminality.
B) Criminal Policy or Penology: concerned with limiting harmful conduct in society.
termed as ‘Penology’ and deals with treatment, prevention and control of crimes.
C) Criminal Law: The Criminal Policies postulated by the above twin sister-branches
i.e. Criminology and Penology, are implemented through the instrumentality of
‘Criminal law’.
*Criminal law in its wider sense consists of two branches, Substantive &
Adjective/Procedural.
Nature and Scope Of Criminal Law/ elements of CL
the whole body of criminal law to be efficient must have four important elements-
Politicality, Specificity, Uniformity and Penal sanction.
Politicality implies only the violations of rules made by the state organ w/c has political
power are regarded as crimes.

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Specificity of criminal law connotes that it strictly/clearly defines the act to be treated as
crime.
Uniformity: Judicial equity
Penal sanctionimposed under the criminal law that the members of society are deterred
from committing crimes.
General Objectives Of Criminal Law

protection of persons and property, the deterrence of criminal behavior, the punishment
of criminal activity and rehabilitation of the criminal.
*‘Purpose’ can be defined as the ultimate objective to be attained. Art 1
Criminal Law, Private law and Morality-Distinguished
For a proper appreciation of the distinction between criminal law, civil law and
morality, it is necessary to understand the “concept of wrongs” and their classification.
morality explains the values of a particular society.
Classification of Wrongs:
 Moral wrongs(Interference of law is considered as unnecessary)

 Legal Wrongs(where the interference of law is necessary)
# Civil wrongs(Law interferes at the instance of the injured party)
# Criminal wrongs(State as a matter of right interferes in most of the cases)
Wrongs
(Acts forbidden by the Society)
Moral wrongs Legal Wrongs

(Interference of law is considered (where the interference of law is necessary)
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unnecessary)
Civil wrongs Criminal wrongs

(Law interferes at the (State as a matter of right interferes in
most of instance) of the injured party)
Relation between Morality and Criminal Law
-both aim at maintainingsocial order (murder, rape, arson, robbery, theft r condemned)
- Everything that is regarded as enhancing the moral guilt of a particular offence is

recognized as a reason for increasing the severity of the punishment awarded to it.
Section 2: The Concept Of Crime:

Crime is a Deceiving Concept: b/c because it covers an enormous range of human
behaviour.
Eg. It is in the bed room of a married couple where wife battering and marital rape
happen, among the family members where child abuse and incest . . .
Crime is A Multidimensional Problem: has its effects on everyone-not just the

criminal and his victim.
Definition of Crime:
-Literal Meaning of Crime: The word “Crime” was originally taken from a Latin term
“Crimen” which means “to charge”. crime is applied to those acts that go against
social order and are worthy of serious condemnation.
- General Meaning of Crime: Oxford Dic. defines crime as “an act punishable by law as
forbidden by statute or injurious to public welfare”.
Blackstone, (1968) has defined crime as “an act committed or omitted in violation of a
public law either forbidding or commanding it”.
Stephen, crime is “an act forbidden by law and which is at the same time revolting to
the moral sentiments of the society”.

89
Austin, “A wrong which is pursued by the sovereign or his subordinates is a crime. A
wrong which is pursued at the discretion of the injured party and his representatives is
a civil injury”.
the Criminal Code of FDRE, 2005, does not give any standard definition of crime, Art.
23(1) simply states stg.
‘Crime’ Distinguished From ‘Civil Wrongs’:
-“Crimes” are said to be harms against the society and are therefore, considered as
graver wrongs. “Torts” & “Breaches of contract” r wrongs against individuals & r
treated as lesser wrongs.
-unlike criminal offences tort may arise irrespective of fault (strict liability) or due to
harm caused by others for whom a person is answerable (vicarious liability).
-“analogy” is forbidden in criminal cases (Art. 2 (1), but may be permissible in Civil
cases where legal provisions embody illustrative (rather than exhaustive) lists.
-Criminal cases require certainty beyond reasonable doubt while the preponderance. . .
- Crime is a public wrong i.e. a harm done against the society. A ‘tort’ is a private
wrong committed against an individual
Section3. The Development Of Criminal Law Of Ethiopia
The Fewuse Menfessawi, The Fetha Negest, The Ethiopian Penal Code, 1930, The
Penal Code of the Empire of Ethiopia, 1957, The 1974 Revolution and Criminal Law
Special Penal Code of 1981
The Criminal Code of the FDRE, 2005

factors necessitated the revision
- To Incorporate the Modern Legal Concepts w/c r adopted by z FDREC & IHRs
instruments: HRs, Equality, . . .
- To Fill in the Lacunae: d/t crl bhrs discovered
- To Adopt a Comprehensive Criminal Code:
- Punishments for Certain Offences Increased

90
- Matters Concerning the Determination of Sentence Revised (sentencing manual art
84- uniform, simple & understandable)
- Purpose of Criminal Law and Objectives of Punishment Redefined
Scheme of the Criminal Code of FDRE, 2005:
has incorporated the Ethiopian Criminal law systematically, coherently and

comprehensively & organized in to general, special & petty parts.
- the Special Part does not operate by itself but has to be considered together with the
General Part. a person who behaves in a manner contrary to provisions of the Special
Part is not automatically punishable.
mechanical imposition of sentence is not what is expected of a Judge, simply by
referring to the punishment mentioned in the pertinent article of the Special Part.
Classification of Crimes under the Criminal Code
1-Classification based on the “Seriousness of the Crimes” – CC simply classifies crimes

into various titles on the basis of content rather than on the scale of punishment.
‘rigorous imprisonment’, ‘simple imprisonment’ and ‘arrest’ r there (de facto
classification)-based on degree seriousness eg. Treson, felony
2-Classification based on the “Subject matter” of the Crime- it is a clear cut and explicit
kind of classification in CC. crimes against d/t interests are kept under various Titles.
eg. state, communinty, indvl, ppty.
*A ‘petty offence’ is an infringement of a mandatory or prohibitory provision of a law

or regulation issued by a competent authority or a minor offence which is not
punishable under the Criminal Law. Such acts or omissions are made punishable under
the Petty Code. Art 735
UNIT -II
BASIC PRINCIPLES OF CRIMINAL LAW

Section 1: The Principle of Legality
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Brief History of the Principle
there can be no crime committed, and no punishment meted out, without a violation of
penal law as it existed at the time. ‘there is no crime or punishment without a pre-
existing law that prohibits that crime’.
This principle/Pple of Legality first became prominent at the time of the French
Revolution towards the end of z 18th C & was included in ‘the French Declaration of
the Rights of Man’.
-the king and the nobility were able to oppress their enemies and use the criminal law as
an instrument of politics through the capacity of their judges to invent crimes and
punishments as the need arose.
“nullum crimen sine lege, nulla poena sine lege”, is an important principle/Pple of
Legality of Criminal law that has been inherited from the Roman Law. “there must be
no crime or punishment except in accordance with fixed predetermined law”. Art 2
CC .
1)‘nullum crimen sine lege’- The first ingredient of the principle is that “there are no
offences other than those which are expressly provided by law”.
2)‘nulla poena sine praevia lege poenali’ -no punishment (can be imposed) without
(having been prescribed by) a previous penal law.
3) ‘Non bis in idem’-Nobody shall be punished twice for the same act (double
jeopardy)
common law maxim “autrefois acquit and autrefois convict” which means “the
previous acquittal or previous conviction may be pleaded by the accused as a bar to the
subsequent trial”.
Section 2: The Principle Of Equality art 4
“All men are equally the children of god and Equal in his sight despite their widely
differing temporal circumstances”

92
originated in the process of the development of Roman law. Romans and non-Romans
(peoples they conquered) within the empire were governed under different sets of laws,
by ‘jus civile’ (Civil Law) citizen of Roman&‘jus gentium’ for non Roman (law of the
nations) respectively.
Then after the belief in natural law led to the idea that non-Romans within the empire
should have the same rights as citizens.
Meaning Of The “Equality” Principle:

All men are born equal and must be treated equally. Its two formulations are, “Equality
before the law” and “the equal protection of the laws” (treating equals, equally and
unequal unequally). Both commonly used as equal justice
Exceptions By Virtue Of Recognized Immunities:
three exceptions to the principle of equality:

 Immunities sanctioned by Public International law,
 Immunities sanctioned by Constitutional law, and
 Requirements of individualization of sentencing/ Criminal Justice.
*Art.4 does not specify the persons who enjoy diplomatic immunity. But according to
the well established principles of International law foreign sovereigns, ambassadors,
diplomatic agents, air crafts, war-ships of foreign countries, UN & AU officials, their
families, secretaries, messengers and servants are exempted from the liability before
municipal (domestic) courts of the state.
- the remedy is to make a demand of his recall by the sending state, where appropriate
action may be taken against him at the discretion of the sovereign whom he represents.
*Whenever a doubt arises as to whether a person who has committed a crime in
Ethiopia does or does not enjoy diplomatic immunity, the decision must be made
according to:

93
a) Such laws or regulations as may have been enacted in the state of which the
person concerned is a citizen or, by the international organization which he
represents, or
b) According to international practice.
* If an alien enemy commits a crime unconnected with war as theft, cheating, etc., they
would be triable by the local criminal courts. Troops of foreign nations are also treated
under the Martial Law.
* Foreign army-When armies of any state are stationed on the land of another state
with the consent of the government of that State, they are immune from the jurisdiction
of the local criminal courts.
* Constitutional laws Art, 54 (5) & (6) & 63, FDREC, declare immunities to the
‘Members of the HPR & HoF respectivelyflagrante delicto unless Red handed.
* Grounds for differential treatment in sentencing:individualization of sentencing

88(2)
1) The conditions in which the crime was committed, for instance, at night, by
violence
2) Certain differences may exist among the criminals themselves, even when
they have acted in similar conditions. an adult & a young person ,first
criminal as on a habitual criminal,
3) Special situations might arise in which the court would have to deal with
persons acting under special duties
* Article.4 makes room for differential treatment of women, children and the mentally
abnormal (feeble minded) criminals.
Section3. The Principle Of Individual Autonomy:

Meaning of the Principle- each individual should be treated as responsible for his or
her own behavior.

94
1)The Factual Element of Autonomy-individuals in general have the capacity and
sufficient free will to make meaningful choices.
2) The Normative Element of Autonomy- the individuals should be respected and
treated as agents capable of choosing their acts and omissions, and that without
recognizing individuals as capable of independent agency they could hardly be
recognized as moral persons.
- the individuals should be protected from official censure, through the criminal law,
unless they can be shown to have chosen the conduct for which they are being held
liable.
Some Instances which can raise Dilemmas relating to the Principle of Autonomy
A)Euthanasia: Your Body, Your Death, Your Choice?-“good death” and refers to the
action of a third party (Assisted suicide), usually a doctor to deliberately end the life of
an individual, voluntary or non-voluntary.
*It is the doctor’s intention to cause the death of the individual that distinguishes
euthanasia from other medical practices causing death. This is doctrine of double effect
since the treatment provided to ease pain has the additional effect of ending the
patient’s life.
*forcing people to live against their wishes violates personal freedoms and human
rights and that it is immoral to compel people to continue to live with unbearable pain
and suffering. But can anyone decide when and how to die? Value of life? Meaning of
health care?
UNIT-III
JURISDICTION OF THE ETHIOPIAN Cr. law
(Arts 11-22 of Z CC)

‘Jurisdiction’- an aspect of sovereignty and refers to judicial, legislative, and
administrative competence.
It is“the legal competence of a particular court to hear a certain type or class of cases”.

95
1)‘Negative’ conflict of Jurisdiction: different courts deny the existence of jurisdiction,
over the matter in question. there is the possibility of a criminal escaping punishment.
2)‘Positive’ conflict of Jurisdiction: different courts claim to have jurisdiction on the
same crime, there is a risk that the criminal might be exposed to “double jeopardy”.
*Conflicts of Jurisdiction at National level: arise as between Ethiopian Criminal courts,
settled in accordance with Arts 99-107 of CPC.
Conflicts of Jurisdiction at International level: arise between an Ethiopian court and a

foreign court, settled in accordance with Arts 11-22 of CrC.
Section 1: Fundamental Principles Of Application Of Jurisdiction:
1)The Principle of Territoriality:- the courts of the place where the crime is committed
may exercise jurisdiction has received universal recognition. Art 11
2) The Principle of Quasi-Territoriality or the Protective or Security Principle:- in a
variety of political, immigration & economic related crimes. Art 13
3) The Principle of Active Personality or the Nationality Principle:- crimes committed
in foreign countries by Ethiopian citizens may be tried in Ethiopia [Arts. 14, 15, (2) and
18 (1)].
4)The Principle of Passive Personality or the Passive Nationality Principle:- aliens may
be punished for acts abroad harmful to the nationals of the forum. Art 17
5) The Principle of Universality or the Principle of Universal Jurisdiction:- acts of non-
nationals where the circumstances, including the nature of crime, justify the repression
of some types of crimes as matter of international public policy.eg hijacking,
trafficking, terrorism. 17, 18(2)
Application Of The Criminal Code As To Place
1. Principal Jurisdiction - A&B 2. Subsidiary

Jurisdiction
A. Territorial Jurisdiction B. Extra-Territorial Jurisdiction.

96
* The word any person under Art. 11 mean and include a citizen of Ethiopia as well as
a non-citizen. Exceptions to “any person” Art 11(2) r Ambassadors and Diplomats &
Premises Occupied By The Foreign Missions.
* The principle of legality prohibits Ethiopian Courts from trying a person who does an
act which is not declared unlawful by the territorial law of the country.
* the courts of Ethiopia have principal jurisdiction when an ‘act’ or ‘omission’
constituting an ingredient of the crime has occurred in Ethiopia, although the
consequential harm might have been caused abroad. Art 25
* The land comprises not only that portion of the earth within the boundaries of
Ethiopia, embassies abroad, Ships (a floating island) and Aircrafts flying Ethiopian flag.
104 CPC.
*2subsidiary jurisdiction- crimes that do not directly and chiefly concern Ethiopia.
These crimes also are committed extra-territorially.
- the Ethiopian Courts derive the jurisdiction from the foreign courts. This is to prevent
a negative conflict of jurisdiction. Art 15(1),17(1) a& b, 18 (1)
Section 2: Extradition:
Meaning- the process whereby under a treaty or upon a basis of reciprocity one state
surrenders to another state at its request a person accused or convicted of a crime
committed against the laws of the requesting state, such requesting state being
competent to try the alleged criminal.
* Extradition is made, as to a legal right, in respect of only those countries with which
there is an agreement for this purpose, although countries generally do not, as a matter
of international practice, even in the absence of an Extradition treaty refuse extradition.
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Rationales
- The general desire of all states to ensure that serious crimes do not go unpunished
- The state on whose territorythe crime has been committed is best able to try the
criminal because the evidence is more freely available there, has the greatest interest in
the punishment of the criminal, and the greatest facilities for ascertaining the truth.
Extraditable Persons art 21(2)
Extradition Crimes- The ordinary practice is to list these in each bilateral extradition
treaty.
As a general rule,: Political crimes; Military crimes, for example, desertion; Religious
crimes are not subject to extradition proceedings.
Extradition under the Criminal Code of FDRE, 2004 Art.21:

1)Extradition of a “Foreigner” Art. 21(1) 2) Extradition of “Ethiopians” Art. 21
(2)
Procedure to request for Extradition (Art. 21/1 and 3)
UNIT-IV
CONDITIONS OF CRIMINAL LIABILITY
Section 1. The Crime And Its Commission:
The 3 Essential Elements of Crime- Mental element (mens rea) 57,The legal element
and material element (Actus reus). Art. 23 of criminal code - very important to talk
about crime
- material element/Actus reus means, the result forbidden by law brought about by
human conduct. A harm brought about by evil conduct manifests the evil mind behind
it.
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- material element is Deed of commission or Result of omission.
“Crimes of Omission’ are characterized by the non- performance of a mandatory act &A
crime is committed when a person fails to perform a duty recognized by law, such
as, professional duty of a doctor. (failure and refusal)
- The legalelement refers to the infringement of any law, which is a criminal nature.
If a crimnal shoots at and kills a person, his “act” does not include the event but only
involves the willed act of pointing the gun and pulling the trigger.
In Mental element The perpetrator should be held criminally liable and be punished if he
or she acts in a blameworthy manner, Criminal Guilt.
Analysis of Provisions Relating to Essential Ingredients of Crime under the CrC

sufficient to independent existence of these elements at different times in one person is
not constitutecriminal liability. Rather, they shall exist together at the time of the
commission of the offence.
Intention:- the state of mind of a man who not only foresees but also wills the possible
consequences of his conduct.
1)Recklessness (indirect intention) - A man may foresee the possible or even probable
consequences of his conduct and yet not desire them to occur.
A man who is reckless may prefer that – the event shall not happen, or he may not care
whether it happens or not.
Art 58, with full knowledge of the consequences and intent.
The desire that impels the motion is known as volition. The longing for the object
desired which sets the volition in motion is motive.
The expectation that the desired motions will lead to certain consequences is the
intention. Intention is the foreknowledge of the act, coupled with the desire of it.
Direct Intention Art 58/1/Para (a)- a fixed object, a clear foresight of consequences ,
and a desire for consequences.
99
Indirect Intention/Dolus eventuals58/1/b“recklessness” GIDELESH
(DolusEventualis):- the criminal does not desire the occurrence of the harm. However,
he is aware of the possible consequences and yet is unwilling to renounce his act since
he has some other object in his mind. In other words, though the criminal does not
desire, he accepts the occurrence of possible harm in order to achieve his own object.
eg.The driver’s case.
Criminal Negligence Art. 59:- Negligence is not taking care where there is a duty to
take care. In negligence, there is a state of mind in which there is absence of desire to
cause a particular consequence.
-Acting by imprudence or ( inadvertent)

-Being aware(has Knowledge) that his act may cause illegal and punishable
consequences acts in disregard of such consequences, or (Advertent)
-Acting by a criminal lack of foresight, or (Advertent)
-Acting without consideration of possible consequences while he should or could have
been aware that his act may cause illegal and punishable consequences.(Inadvertent)
*in the advertent negligence like in the case of in direct intention, foresees the
possibility of some harm(has knowlege) but disregards (or rejects) its occurrence. but,
Under indirect intention the criminal accepts the occurrence of the possible harm
whereas in the advertent negligence the person rejects the possibility of the harm which
in fact materializes as a result of his negligence.
* Under inadvertent negligence the accused is not aware of a possible harm( has
knowledge). no The offender does not foresee the result at all.

100
Art. 58 Art. 59
Criminal Intention Criminal Negligence
Direct Intention Indirect Intention Advertent In advertent

Negligence
Negligence
1. There is full There is There is There should

knowledge i.e., awareness of awareness of or could have
awareness of consequences consequences been awareness
consequences (knowledge) and (Knowledge) of
accompanied by unwillingness to but consequences
with (intent). renounce the disregards/reje but lack of
course of conduct. ct the consideration
(Accept) possibility of the same
2. The foresight The foresight is There is Failure to

is certain or not certain but awareness of foresee the
nearly certain as awareness of the possibility of consequences.
to the possibility of the consequences.
consequences. consequences is
present.
Rejects the
There is no desire
3. There is desire occurrence of
for consequences Lack of fore
for the the possible
but disregards and sight i.e. failure
consequences. harm.
runs the risk of to exercise
possible harm. i.e. care. Does not
accepts the foresee at all.
occurrence of
possible
Short notes of (Hawassa University) harm
/Collection of Public Law)
101
Accident:- If no either of intention or negligence of guilt. it is accident, no
punishment. when the act by which it is caused is not done with intention of causing it
and when its occurrence as a consequence of such act is not so probable that a person
of ordinary prudence ought under the circumstance in which it is done, to take
reasonable precaution against it. Art. 57 (2)
After identifying the intention, we go to search evidence. eg. Admission, Statement to
friend, possibility
Section 2: Relationship of Cause and Effect: ART 24
Tests to Establish the Relationship of Cause and Effect:-
*Sine qua non Test or the Theory of Absolute Causation- “without which not” –“An
act in the absence of which the result would not have been achieved is deemed to be the
cause of such result”. indispensable reason or use ultimatecause.
*Adequate or Proximate Cause Test- A’s act of striking ‘B’ and the slight injury
suffered by ‘B’, it cannot be extended to anything that may happen after striking and
apply to B’s death. current cr. code applies
24/1- The very imp't statement' in the normal course of thing'- the act should produce
the result
Factors That Might Break the Chain of Causation- 24(2)
-Existence of preceding causes (‘A’ hit ‘B’ a hemophiliac),

-Existence of concurrent causes (‘A’ and ‘B’ simultaneously shoot ‘C’ with the
intention of killing him),
-Intervention of extraneous causes (two or more consecutive (not simultaneous) events
has caused the harm in issue.)
Difficulties in the Assessment of “Physical Element” Of Crime

102
-A man may be held fully liable although he has taken no physical part at all in the
actual commission of the crime. principals(mastermind-32/b) and accessories,
incitement and conspiracy.
- A person will be held fully “responsible if he has made use of an “innocent agent” to
commit a crime.
Section.3 Concurrence Of Crimes- Guilt In Case Of Concurrence Crimes Art. 60-

67
1)When several unlawful acts are done in contravention of one or more articles of the
law, concurrence of crimes or Material Concurrence, or
2)When one unlawful act is done in contravention of several articles of the law,
concurrence of criminal provisions or Notional Concurrence. rape (Art.620)
incest (Art.654), adultery (Art.652) and public indecency (Art. 639)
Section. 4. Corporate Criminal Liability

Goals of Corporate Criminal Liability
 deterrence—effective prevention of future crimes.

 the rehabilitation of corporate criminals.
 retribution and reflects the society’s duty to punish those who inflict harm in
order to “affirm the victim’s real value.”
 clarity, predictability, and consistency with the criminal law principles in general.
 it is the goal of general fairness.
Kinds of Corporate Liability:
Generally, criminal sanctions include imprisonment, fines and community service
orders.
civil lawremedies such as injunction and the award of damages which may include a penal
element.
Principles of Corporate Liability:

103
1)Vicarious liability: to hold one person liable for the actions of another when engaged
in some form of joint or collective activity. The general rule in the criminal law is that
there is no vicarious liability. a crime is composed of an actus reus& a mens rea.
2)Direct liability: a company is a legal person that could sue and be sued in its own
name, has given way to the law maker superimpose its individualistic conception of
criminal liability to legal persons.
UNIT-V
DEGREES IN THE COMMISSION OFCRIME
Section.1. Different Stages In The Commission Of Crime
2)Preparation:- a crime, is not completed unless all its legal, material and moral
ingredients are present.
A criminal crosses this line firstly by preparing the commission of a crime within the
meaning of Art. 26.
The phases of desire, decision and initial planning (in the thoughts of the criminal) are
mental that do not involve exterior acts. CC does not in principle punish preparatory
acts, b/c
- behaviors cannot be considered to constitute the material element of the crime unless
they are proximate and definite that the offence is likely to be committed.- Equivocation
- remoteness of the preparatory acts towards the offences intended to be committed
There are two situations where preparatory acts are punishable.
1)Where the Acts Constitute a Crime in Themselves (Art 26/a)- buying a gun to kill.
2) Where the Preparatory Acts Constitute a “Special Crime” by Owing to Their
Gravity (Art 26/b): material preparation of offences against the state (Art. 256, 257),
# Attempt- a willful effort but without success, & includes intent, overt act, and failure
to achieve the result. Incomplete, Complete & impossible attempts.

104
*without establishing his guilty intention it is impossible to make him liable for an
attempt. As long as the consequence is intended, erroneous appreciation of the material
circumstances may not alter the liability for attempt.
the crime of conspiracy is said to be completed even if there is no further act to put the
agreement into effect. 38
Section 2. Importance of Distinction between Preparation and Attempt:

The relative proximity between the ‘act’ done and the ‘evil consequences’ contemplated
largely determines the distinction.
preparation consists in devising or arranging the means or measures necessary for the
commission of the crime; while an attempt is the direct movement towards the
commission of the crime after preparations have been made. Conceptually preparation
is not a crime
Identification Of The Stage Of Attempt
1)Reasonable Inference test or Unequivocality Test- an act done with intent to

commit a crime is not a criminal attempt unless it is of such a nature as to be in itself
sufficient evidence of the criminal intent with which it is done. To constitute an attempt,
the act must be such as to clearly and unequivocally indicate the intention to commit the
crime.
2) The Commencement of Execution Test:- there is an attempt as of the moment the

accused begins to commit the crime. Art. 27/1
3) Proximity test:- An act of attempt must be sufficiently proximate to the crime
intended, it should not be remotely leading towards the commission of a crime. Failing
due to some defect in the gun.
UNIT- VI
PARTICIPATION IN THE COMMISSION OF CRIME
105
Section.1. Participation In Principal Capacity:- if and only if he/she participates in
the commission of the offence materially.
ButIn Ethiopia, principal participation is defined broadly that it takes the forms of
material, moral and indirect offenders. Art 32.
* Material Criminal- 32(1) (a) * Moral Criminal 32(1) (b) * Indirect Criminal
32(1) (c)
Legal Effects Of Participation:- A person who involves himself is liable for the crime
committed being considered as a criminal in the first degree.
Co-criminals- CC defines it broadly so as to include all principal parties who involve
in the commission of the crime either as a material criminal, moral criminal or indirect
criminal.
Persons may also be categorized as co-criminals in general crimes (w/c can be

committed by any one. This relates to homicide, theft, robbery, bodily injury) and
special crimes (w/c requires special qualification.)
Section.2. Participation In The Secondary Capacity- exists either before or during

the commission of the crime, incitement or complicity (accessories).
Criminal Conspiracy- Conspiracy is defined as an agreement between two or more

persons to effect something unlawful. In case of conspiracy there is a need of an overt
agreement beyond independent intentions of the persons involved which of course
constitutes the material element of the crime.
*The crime of conspiracy is completed at the moment when two or more persons have
agreed that they will do at once or at some future time an act which is unlawful.
*In the Ethiopian law, conspiracy, as a rule, is not considered to be an independent

crime. Rather, it is a ground for aggravating punishment when persons participate in the
commission of a crime based on prior agreement as per Art 38(1).
106
* Though our law disregards the act of conspiracy as an independent crime, Article
38(2) provides exceptions that it is taken as an independent crime
Participation Of Juridical/legal Persons In A Crime- CC makes both the juridical

person and its officials or employees who commit a crime criminally liable.
Accessories After The Fact:Art.40- 440, 682, 460
CRIMINAL law 2
UNIT-I
CRIMINAL RESPONSIBILITY
General Defenses:- are circumstances that relieve an accused from conviction of guilt
and its consequent penalty. These are general defenses, to all crimes (excuses and
justifications) & special defenses for special crimes.
- The Criminal Code of 2005 does not follow this dichotomy.
Excuses are defenses that arise because the defendant is not blameworthy for having
acted in a way that would otherwise be criminal. the focus is on the individual criminal
rather than on the crime committed.
Defenses that arise when the defendant has acted in a way that the law does not seek to
prevent are called justification defenses. when there is an attack on legally protected
rights, the steps taken to reverse the attack is justifiable act.
Section 1: Criminal Responsibility and Irresponsibility
Responsibility is a person’s mental fitness to answer in a court for his/her action.

Persons are criminally liable only if they are responsible for their acts.
Responsibility or irresponsibility is concerned with the criminals’ awareness and their

capabilities to control their action.

107
Irresponsibility may arise in three cases. With regards to adults, it may arise from
insanity or intoxication, and with regards to infants, it may arise from their immaturity.
* Absolute Irresponsibility: Art. 48

Responsibility could not be defined in a positive, but only in a negative manner, and
this is why most codes including the ours do not describe responsible but irresponsible
persons.
Insanity:- is a complete defense to a criminal charge. He has no mens rea.
a defendant first, does not know the nature and quality of his act (no act requirement),
second he does not know the wrongfulness of his act (no mens rea).
*Limited Responsibility: Art. 49- guilty but mentally ill . Such a person may neither be
relieved of liability, since he is not fully irresponsible, nor should he be liable to a full
punishment, since he is not fully responsible.
This is a question of degree may arise. In most cases only expert evidence will enable
the court to decide whether and to what extent the accused is irresponsible.
A person is not partially responsible for the sole reason that he is of low intelligence or
poor education.
Section.2. Intoxication-Intentional or Culpable Irresponsibility: Art. 50

*Voluntary and Involuntary Intoxication- The main deference between Art. 50 and
(48&49) is not the bio-psychological condition of the offender but it is the
condition,that creates the irresponsible nature of the offender. it is the doer who puts
himself into a condition of irresponsibility or of limited responsibility by means of
alcohol or drugs or by any other means.
Sub- State of the State Crime Legal
Art. Defendant Induced By Committed Consequence
Art. Absolute or Own fault Intentionally Fully liable to
50/1 Limited (Voluntary (In order punishment

108
irresponsibilit Intoxication) to…)
y
Art Absolute or Own fault Negligently Punishable for
50/2 Limited (Negligence) negligent
irresponsibilit commission of
y the crime
Art. Absolute Own fault Accidentally Punishable
50/3 irresponsibilit (Neither under Art. 491
y contemplated provided the
nor intended) crime is
punishable with
at least 1 year.
Art. Absolute No fault on While Shall not be
50/4 irresponsibilit his part incapable of liable to
y (i.e. has forming any punishment
been mental
coerced) element
Section. 3. Infancy/Immaturity 0-9 years free from cr punsi't: Art. 52
an infant is incapable of distinguishing between right and wrong and so no criminal

responsibility could be fastened in regard to his deeds.
Young person's 9-15 , are criminally liable b/c . First, persons begin to understand the
nature of their acts, to be able to form a decision and to keep to it between the age of
nine and fifteen. their intelligence and volition develop and become gradually closer to
those of adults.

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Secondly, the commission of a crime shows that the time has come to take action
because no action has been taken at home or school or it has failed.
the primary aims of any action taken with respect to young persons are and must be
education and correction. To make them useful citizens.
Transitory Age 15- 18 : the court has three options. First, it may order any of the
penalties applicable to adults and mitigate it according to article 179. Secondary, it may
order one of the special penalties applicable to young persons. Finally, the court may
order special measures applicable to young criminals based on the conditions laid down
under article 177.
UNIT-II
AFFIRMATIVE DEFENSES
legal defenses against a criminal charge.
Section.1. Lawful, Justifiable and Excusable Acts:
The Ethiopian Code does not follow lawful(acts done in circumstances which legitimate
them) , justifiable (acts done in circumstances excluding intentional guilt) & excusable
(acts done in circumstances reducing the degree of guilt) classes of acts with respect to
which the ordinary rules concerning criminal guilt do not apply or fully apply.
Lawful Acts- (Acts Required or Authorized by Law: Art.68) Because of the
existence of the legal right or duty to act, the act, which would otherwise be criminal, is
a legitimate one for which the doer is not punishable.
A. Acts Relating to Public, State or Military Duties
B. Right of Correction or Discipline:- Art.2039(c) of the Civil Code impliedly

authorizing the parents, guardians and masters to use reasonable use of force for the
purposes of chastisement. Art.576/3 OF cc LIMITS ZIS RT.
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C. Exercising Private Rights: - Arts.1148 and 2076(2) justify the protective actions of
a holder.
* Professional Duty: Art. 69- Acts done in the exercise of a professional duty come
within the general category of acts authorized by law. It is exempted b/c the fact that the
act is ordered by law.
if a doctor terminates a pregnancy on medical ground and report that to the right
authority, as he is required to so by law, he would not be punished for breach of
professional secrecy.
* Consent As a Defence: Art. 70- Consenting to donate any of his bodily parts.
* Coercion/Duress: Arts. 71 & 72- a defense that the actor engaged in the conduct
charged to constitute an offense because he is coerced to do so by the use of, or a threat
to use, unlawful force against his person or the person of another, which a person of
reasonable firmness in his situation would have been unable to resist.
like an insane person or intoxicated person he is totally deprived of his freedom of

choice and therefore equally deserves the same treatment as long as the loss of will
power is involuntary.
* Superior/Subordinate Relation: Arts. 73 & 74- ariseswhen a person commits an

offense on the order of someone to whom he owes obedience. In both administrative
and military superior.
Section: 2. Necessity and Legitimate Defense:
General State of Necessity: Arts.75-76- the doing of harm is the only alternative to the
suffering of harm. sometimes called an “act of God,” , fire, a storm, an earthquake, or a
shipwreck

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necessary acts, unlike acts done in legitimate defense, are not deemed to be lawful. In
case of necessity the actor does not have the right to protect his interests at the expense
of those of another and is not authorized by law to cause harm so long as he is not
threatened with or subjected to, an unlawful attack.
Under the 1957 penal code, the defense of necessity covers everyone who falls in a state
of emergency. The second paragraph of Art.75 provides for an exception where
necessity is not a defense notwithstanding that all the necessary conditions to raise the
defense is met.
- There must be a Danger - The Danger must be Imminent
- The Danger must be Serious - The Danger Could Not Otherwise Be

Averted
- The Harm must be Proportional - the absence of fault on the side of the doer. If a
person intentionally creates the situation of necessity, . . .
Legitimate Defense: Arts. 78, 79- when a person is suddenly faced with an attack to
his person or property and immediate aid from the state machinery is not available, that
person is entitled to defend himself and resist the attack and to inflict on the attacker
any harm that is necessary for the purpose of defense.
Legitimate defense is one specific type of necessity, and therefore has much in
common. In both cases, a situation of distress arises which cannot be solved otherwise
than by the doing of harm. D/nces
(i) necessity is basically one of aggression while an act under Art 78 is one of defense,
(ii)the doer of a necessary act, unlike a person who defends himself, is not resisting an
unlawful assault.

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(iii) in the case of necessity the conflict occurs is between two legitimate interests but
in the case of legitimate-defense the conflict occurs is not between two legitimate
interests.
Section. 3. Mistake of Fact, Mistake of Law and Ignorance of law: Arts.80&81
Mistake of Fact and Mistake of Law-
Mistake or ignorance of fact can serve as a defense if it negates the state of mind
(mens rea) required for the crime.
A fact may consists of, a phenomenon perceptible by the sense. ( e.g. the doer mistakes
arsenic for sugar) or a state of mind (e.g. the doer believes that someone intends to kill
him)
Mistake of Law and Ignorance of Law- ordinarily means mistake as to the existence
of any law on a relevant subject as well as mistake as to what the law is.
Ignorance of the law has rarely been sufficient to excuse criminal conduct. It is
permitted as a defense only in situation in which the law is not widely known and a
person cannot be expected to be aware of a particular law (foreigner).
In Eth, Art.81 (2) CC, ignorance of law is not excuse but the court may reduce the
punishment.
Art.81 (3) states that in exceptional cases of absolute and justifiable ignorance and good
faith and where criminal intent is not apparent, the court may impose no punishment.
This stand of the criminal code shows that it stands in a half way between the two
schools (no defense & defence wiz exception ).
UNIT-III
CRIMINAL PUNISHMENT AND ITS APPLICATION

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Section. 1. Definition and Purpose of punishment:
Definition of Punishment:- Broadly speaking punishment is the response of the society

to socially dangerous behavior.
Purpose of Punishment-
*Retribution- punishment satisfies the feeling of revenge.
*Deterrence:-the purpose of the punishment is to deter the criminal from committing

crime in future and to set as an example to the prospective criminals.
*Prevention/Incapacitation:-to prevent the criminal from committing crimes by

physically disabling him by separating him and keeping him in seclusion from the
society for a certain period of time.
*Reformation /Rehabilitations- to change the character of the offender. The effort to

restore a man to society as a better and wiser man and as a good citizen.
Section.2. Kinds Of Punishments
 Ordinary punishments applicable to Adults –Book II, Title I, Articles 90-156.

 Measures and penalties applicable to young persons-Book II, Title I Articles 157-
177.
 Penalties and measures applicable to Petty offences-Petty Code, Book VII Title II
Art 746-764.
*three categories of punishments mentioned in Articles 90-156:
I. Principal penalties II. Secondary penalties III. Special measures applicable to

Adults
Principal Penalties - can be put under the following heads:
-Pecuniary Penalties-art. 90-102- Fine, Sequestration & Other pecuniary effects

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-Punishments Restricting or Depriving Liberty – Art. 103-116- compulsory labour,
Imprisonment
1. Simple Imprisonment- art106

2. Rigorous Imprisonment-art 108
-Death Penalty – Art. 117-120- the most precious right to life embodied under Art 15 of
the Constitution which obviously permits the deprivation of life as a punishment for
serious crimes without doubt is interpreted subject to the most important international
instruments that guarantee the right to life.
Secondary Penalties- before imposing a secondary penalty the court has to pronounce
a primary penalty, which it deems to be appropriate for a crime. However, they may
replace the principal penalty under the conditions stated by the provision of article
122(2).
Special Measures Applicable to Adults- have the purposes of reforming and educating
the person so that he abstains from committing further crime when he gets back to the
society after serving his sentence in the prison.
*Measures applicable Irresponsible persons and criminals with limited responsibility
129ff
* General Measures for the Purposes of Prevention and Protection 134
* Measures of a Material Nature (Guarantee of Good Conduct, seizure of all dangerous

articles)135ff
*Measures Entailing Restriction on Activities (Suspension and withdrawal of a license,
Prohibition and closing of an undertaking) 142ff
*Measures Entailing a Restriction on Personal Liberty 145ff(Prohibition from resorting
to certain places, Prohibition to settle down or reside in a place, Obligation to Reside in
Special Place or Area, Placing under Supervision, Withdrawal of Official Papers,
Expulsion)

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*Measures for the Purpose of Information (Notification to the Competent Authority,
Publication of the Judgment, Entry in the Judgment Register)
Section.3. Determination Of Punishment:
General Principles of Determination of Punishment: Arts. 87-89
Extenuating Circumstances 82-87
Section.4. Post Conviction Processes
 Suspension of penalty and conditional release,

 Pardon and Amnesty 229 & 230
 Reinstatement Arts.232-237
Differences between Pardon and Amnesty:
 Pardon is remittance of penalty while amnesty is a general pardon especially for
political crimes against government.

 Pardon is granted by the competent authority where as amnesty is granted by the
appropriate competent authority.

 In pardon, the remission of sentence may be whole or in part and in amnesty, it is
always complete remission.

 Pardon may completely remit the penalty or commute the same to a penalty of lesser
nature or gravity.
 Pardon may apply to all penalties and measures whether principal or secondary. But
amnesty may be granted in respect to certain crimes and certain classes of criminals
only.
 The order of pardon may determine the conditions to which it is subjected to and its
scope. Amnesty may be either absolute or subject to certain conditions and obligations.

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Pardon shall not cancel the sentence. However, amnesty, cancels both the indictment
and the sentence and bars or discontinues any prosecution from the moment of its
promulgation.
Exit point
Annex I. Key to Solve a Case Problem:
While solving a case problem the students are required to systematically deal with the
facts given to them keeping certain key points in their mind in order to achieve these
beneficial results:
1. To have clarity in presentation of their case, and
2. To avoid mixing up of prosecution and defense cases.
Students have this common problem of mixing up of prosecution case with that of
defence. They should remember that while preparing a prosecution case they should
stick to that side and challenge the defence with their contentions. Switching to
defence points in between reflects their uncertainty and makes their case weak. The
same is true while preparing a defence case; the student should completely explore his
chances of defending his case by identifying different grounds to establish the
innocence of the accused in a right case or at least try to limit his liability in a case
where the defendant’s involvement is obvious.
I. Being a Prosecutor:
Before proceeding to prepare your case always read the facts thoroughly, if need be
more than once to clear any lingering doubts about the facts in your mind. Note the
names of the parties, dates, timings etc. perfectly in a chronological order (according
to the order of occurrence). The prosecution case should necessarily consist of three
important parts namely, identification of the conduct under specific provision of the
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Special Part, fixing the criminal liability of the accused and recommendation of the
sentence.
1. Identification of the Accused’s Conduct:

The first thing that comes to the mind after reading the facts is the specific kind of
crime that the accused has committed. It is the harmful result that directs you to the
relevant provision; say for example if the facts include the killing of a human being it
will be identified as:
 A crime of homicide Arts 538-543

 The specific type of homicide i.e. whether intentional [Aggravated
(Art. 539), Ordinary (Art. 540) or Extenuated (Art. 541)] or Negligent homicide(Art.
543)
At this stage just identification of the conduct under the relevant provision is
sufficient.
2. Fixing the Criminal Liability of the Accused:

a. Essential elements of the crime identified:
The material and moral ingredients of the crime in accordance with the identified
provision of the Special Part has to be discussed here clearly. For example, if it is a case
of aggravated homicide, the facts should be shown to disclose:
 Intention of the accused in terms of Art. 58,

 At least one of the aggravating circumstances in terms of Art.539/1/a or b
b. Causation of crime:
If the facts include more than one cause then it has to be shown that the accused’s act
was the actual and adequate cause for the harmful consequence i.e. ‘death of a human
being’ as in the case of the example we are considering. This is done in accordance with
the rules laid down in Art.24 of the General part.
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Always try to give sufficient reasoning for your stand. Yes/ No answers are neither
useful for scoring maximum marks nor useful for your future practical application. This
will help you to write nice reasoned judgments of academic as well as practical
importance in future.
3. Recommendation of the Quantum of Punishment:
The last and very important part of the prosecution case is that it should contain a well
reasoned recommendation for a specific ‘quantum’ of punishment. Though it is the
judge that has the final word in deciding the nature and length of the sentence to be
given, it should form part of the prosecution’s request. For example, in a case of
aggravated homicide you will conclude that the accused be given a sentence of
rigorous imprisonment for life unless there are convincing grounds for demanding a
death penalty. You have to support your sentence with sufficient reasoning too which
will stand as an answer for the demands of the defence for mitigation of punishment.
The sentence recommendation should include aggravating circumstances, previous

convictions, if any, and a description of the disposition of the accused.
II. Being a Defense Counsel:
Normally the defense case begins with a ‘plea of not guilty’ where in the accused
denies all the charges made against him. The defense may base its case on anyone of
the following grounds:
1. Absence of Legal Ingredient:

It may be shown that the harm caused is not one of those which are specifically
prohibited under the Special Part of the Code. For example, ‘raping’ is a crime under
the Ethiopian Criminal Code where as ‘fornication’ is not. Therefore, unless there is a
strong proof of an element of ‘force’ the conduct cannot be a crime. The principle of
legality prohibits the creation of crimes by analogy (Art.2/3). Or,
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2. Absence of Material Ingredient:
a. By proving the absence of ‘cause’ and ‘effect’ relationship:
In a case where several causes are present like preceding, concurrent or intervening
etc. (Art. 24) ‘the act/conduct of the accused’ may be proved to be ‘not the one’ that
had brought about the result or that it was the ‘inadequate one’ to have brought
about the harmful result in question.
You need to show facts supporting your argument. Or,
b. By plea of ‘alibi’:
The Latin expression ‘alibi’ literally means ‘elsewhere’. It is a plea by a person accused
of an offence that he was ‘elsewhere’…that having regard to the time and place when
and where he is alleged to have committed the crime, he could not have been present.
The plea of alibipostulates the ‘physical impossibility of the presence’ of the accused at
the scene of the crime by reason of his presence at another place. It should be shown
that the accused was so far away at the relevant time that he could not be presented
at the place where the crime was committed.
Note: While solving a hypothetical case ‘alibi’ can be raised only in the light of the
given facts. You cannot modify the facts by imagination. You cannot assume the facts
unless you are asked to. Or,
3. Absence of Moral Ingredient:

a. By Proof of Incapacities: Arts. 48-56
The defence may claim anyone of the incapacities like insanity, intoxication or infancy
to prove the incapability of the defendant to form the guilty mind necessary to bring
about the harmful consequences in question. Here again you have an obligation to

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support your contentions in the light of the facts given and the principles governing
such a defence by referring to the relevant provisions of law. Or,
b. By Proof of an Affirmative Defence; Arts. 68-81

i. Where justifiable-No punishment at all:
Where all the essential conditions and the limitations specified under the relevant
provision are fulfilled, the defence can claim complete immunity from punishment.
ii. Where excusable-Mitigation of punishment:

Where the conduct of the accused does not fulfil the requirements for an absolute
justification a free mitigation of punishment pursuant to Art 180 can be claimed.
ADMINISTRATIVE LAW
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UNIT ONE: INTRODUCTION TO ADMINISTRATIVE LAW
The Modern Welfare State and Evolution of Administrative Law

The change in the role of government and thereby the transformation of the ‘police
state’ to the ‘welfare state’ has necessitated the need for conferring more power on the
administration and simultaneously the need for controlling this power.
Administrative law is the by- product of the growing of socio- economic functions of
the state and the increased powers of the government.
The welfare state in effectively carrying out these vast functions to attain socio-
economic justice, inevitability will come in direct relationship and encounter with the
private citizens.
Definition- It studies rules and principles applicable to the manner of exercising
governmental powers such as principles of fairness, reasonableness, rationality and the
rules of natural justice.
Purpose - controlling the manner of exercise of public power so as to ensure rule of law
and respect for the right and liberty of individuals.
Sources of Administration Law- constitution, legislation, delegated legislations
(Rules, directives and regulations), judicial review ( the least source).
Scope of Administrative Law- the proper scope of the administrative law is procedure,
not substance. This means, it is concerned with the decision-making procedure (how
power is exercised), rather than the decision itself.
I- Public Law/Private Law Divide- The boundaries of administrative law extend only
when administrative agencies and public officials exercise statutory or public powers,
or when performing public duties.
The former govern the relationship between the state and the individual, whereas the
later governs the relationship between individual citizens and some forms of
relationships with the state, like relationship based on government contract.

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II-Substance vs. Procedure- The focus of administrative law is mainly on the
manner and procedure of exercising power granted to administrative agencies by
the legislature.
Theoretical Perspectives- the perspectives on administrative law are summarized
by two contrasting models labeled by Harlow and Rowling as ‘red light’ and
‘green light’ theories.
A) Red Light Theory- advocates strong role for the courts to review
administrative decisions. It considers that the function of law is to control the
excesses of state power. this theory talks courts role to control power. it's origin
is Laizfair.
B) Green Light Theory- approach considers that the function of administrative
law is to facilitate the operation of the state. It is based on the rationale that
bureaucrats will function most efficiently in the absence of intervention.this
theory gives wider power to gov't. It's origin is utilitarian tradition.It regards
law not as a controlling mechanism, rather as facilitative tool. Consequently, it
considers the court’s intervention as an obstacle to efficiency. It is originated
from the utilitarian tradition, which proposes promoting the greatest good for
the greatest number.
# Constitutional Law and Administrative Law-Admve Law is categorized as public
law. So does the constitution.
Constitutional law, being the supreme law of the land, formulates fundamental rights
which are inviolable and inalienable. Hence, it supersedes all other laws including
administrative law.
Admve Lawdoes not provide rights. Its purpose is providing principles, rules and
procedures and remedies to protect and safeguard fundamental rights.it is a tool for
implementing the constitution.
Bothshare a common ground, and supplement each other in their mission to bring about
administrative justice.
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Administrative Law and Human Rights
Both systems of law aim at restraining arbitrary or unreasonable governmental action
and, in so doing, help to protect the rights of individuals.
Both laws assert that governments must not intrude on people’s lives without lawful
authority.
Human rights law is principally concerned with protecting and ensuring substantive
rights and freedoms, whereas administrative law focuses more on procedure and
judicial review attempts made to preserve a strict distinction between the legality and
the merits of a decision.
HRL law is underpinned by the paramount ideal of securing human dignity, whereas
AL is more committed to good decision-making and rational administration.
Administrative Law and Good Governance
AL helps to realize the three underlying principles of good administration: i.e.
accountability, transparency and public participation.
AL ensures transparency in the conduct of government administration and the decision
making process.
ALlays down the legal framework by which public’s participation is recognized and
practically implemented.
Administrative Law enabling citizens have access to government information, it also
ensures openness in the decision-making process. It lays down the legal framework by
which public’s participation is recognized and practically implemented.
Administrative Law and Democracy
Their meeting line rests in accountability of all branches of government, in the principle
of rule of law
The 2 may in conflict when administrative agencies make individual decisions affecting
citizens’ lives and also set general policies affecting an entire economy.
Development of Administrative law in Ethiopia

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French administrative law is known as “droit administratiff”, which means a body of
rules which determine the organization, powers and duties of public administration and
regulate the relation of the administration with the citizens of the country.
In Eth it is still not well developed, and it is an area of law characterized by the lack of
legislative reform.
Up to 1987, the previous three constitutions of the 1931, 1955 and 1974 did not contain
any meaningful and practical limit on the power of government.
During H/S era, an unsuccessful attempt was made to introduce for the first time an
Administrative Procedure Act that governs the decision making process of the
administrative agencies. there was the establishment of the office of the Ombudsman.
Attempts to establishment of some the administrative courts like the Civil Service
Tribunal.
Administrative law didn’t show any progress during the Dergue regime. The 1987
constitution was not devised to limit the power of the government.
The FDREC contains key principles of government administration like accountability,
transparency, and public participation. It also envisages the establishment of the
Ombudsman and the Human Rights Commission.
Still there is no administrative procedure governing administrative decision-making or
delegated legislation, either at the federal or state level. There are only few
administrative courts poorly organized.
Institutional control through the Ombudsman and the Human Rights Commission is not
as developed and effective.

125
UNIT TWO:
CONSTITUTIONAL FOUNDATION AND LIMITATION OF

ADMINISTRATIVE LAW
Rule of Law as a Base of Administrative Law

Rule of Lawprovides protection to the people against the arbitrary action of the
administrative authorities. Only the law rules.
Rule of law procedural elements are
A. Supremacy of Law (Principle of Legality)- every administrative action that
should be taken according to law.
B.Principle of Equality - equality before the law, or the equal subjection of all
classes to the ordinary law of the land administered by the ordinary law courts.
C.Constitution Is the a result of the Ordinary Law of the Land
Rule of Law Substantive (ideological) elements are
Rule of Law as a Foundation of Administrative Law- the rule of law requires that
government should operate within the confines of the law; and that aggrieved citizens
can go to court. the basic purpose of the administrative law is to control excessive and
arbitrary governmental power.
Separation of Powers as a Limitation on Administrative Law - none of the
government, i.e., the legislative, executive and judicial should ever exercise the powers
of the other, separated & distinct.
The same person should not form part of more than one organ’s job, One organ should
not interfere with any other & it should not exercise the functions assigned to any other.
The division of governmental powers into legislative, executive and judicial is not an
exact classification. It is abstract and general and there are many powers which may be
assigned to one department, or delegated to a commission, or agency.
Even though the principle of separation of powers mainly draws a line between the 3
administrative law runs, to some extent, contrary to this principle.
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- in order to ensure efficient and effective enforcement of laws, it has become a
compulsive necessity to delegate the executive and administrative agencies with
additional legislative and judicial powers (functions).
- Delegation of legislative powers by the legislature is clearly against the principle of
separation of powers. However, it is justified on practical grounds.
the principle of delegation mainly serves as a limitation on the scope of administrative
law, by making courts not to question the substance of administrative action, but only
its legality.
UNIT THREE:
ADMINISTRATIVE AGENCIES: SUBJECTS OF ADMINISTRATIVE
LAW
Definition of admve agencies- An agency is any department, board, bureau,
commission, division, office, council, committee or officer of the state or a public
benefit corporation or public authority at least one of whose members is appointed by
the governor.
Most agencies have names like department, authority, commission, bureau, board etc.
Classification of Administrative Agencies - based on
- Mode of accountability.
1)those agencies directly accountable to the executive branch are known as executive
agencies - vertical r/n (usually accountable to a certain ministry, or council of
ministries, or the prime minister)
2)where those accountable to parliament are called independent agencies - Horizontal
r/n (The Federal Ombudsman, The Human Right Commission, The National Election
Board, The Auditor General & The Population and Census Commission)
-Mode of Creating an Agency - are created in two ways: one is through the
constitution, and the second is through act of parliament.

127
The only difference b/n the two modes is that when the constitution requires the
establishment of some agencies the HPR has a duty to promulgate the enabling act for
that specific agency.
When an agency is created only through the enabling act, in the absence of
constitutional duty from the parliament, its existence is totally dependent on the will or
option of the parliament.
Reasons for the Creation of Agencies
A. Providing Specificity- The legislative branch of government cannot legislate in
sufficient detail to cover all aspects of many problems.
B. Providing Protection- Many government agencies exist to protect the public,
especially from the business community.
C. Providing Services- eg. ELPA, TELL COMMUNICATION
Structure and Organization- The structure and internal organization of an
administrative agency may greatly vary depending on the government policy and the
programme it is expected to accomplish.
Purpose of Administrative Agencies- They are usually charged with the day-to-day
details of governing.
to regulate, to control monopoly power, to control excess profit, to compensate for
externalities (when the cost of producing something does not reflect the true cost to
society for producing the goods), To compensate for inadequate information, To
compensate for unequal bargaining of powers, Disbursement of money or other
commodities.
Classification of Powers of Administrative Agencies
A)Legislative (Rule Making) Power- it is more formally delegated legislation, is the
power of agencies to enact binding rules through the power delegated to them by the
legislator.

128
B)Judicial (Decision – Making) Power- administrative agencies that write and enforce
their own regulations have also often been given the power of judging them in their own
courts and through their own "administrative law" judges.
C)Administrative power- is the residual power that is neither legislative nor judicial.
Execution is inherent power of admve agencies.
Administrative Agencies in Ethiopia – during Tewodros, apart from the establishment
of a territorial police force and a regular army any specific agency charged with public
administration was unknown and non-existent. Civil service were 1st established.
In 1907, Emperor Menelik created the first ministerial framework.
The 1931 C laid a foundation for the existence of the first administrative agencies in the
Ethiopian history of public administration. (recognized the existence of the executive
branch.)
The 1987 Derg C gave all administrative powers to the council of ministers.
In 1995 FDREC administrative agencies are established at the federal and state level.
The constitution does not directly or indirectly make a reference to administrative
agencies as parts of the system of government. It recognizes the separation of powers
among the three branches of government. This means, in effect, the source of legislative
and judicial power of administrative agencies, typically those at the federal level could
not be easily justified on constitutional grounds. For instance, the constitution does not
in any way allow HPR to share or transfer some of its law making powers to agencies
headed by unelected officials. Legislation through delegation is only mentioned with
respect to the council of ministers.
Two types of agencies exist at the federal level: These are independent and executive
agencies.
Due to the lack a precise definition of an administrative agency in Ethiopia, every
government entity partially or fully funded by the government is considered to be an
administrative agency.

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UNIT FOUR: RULE-MAKING (QUASI-LEGISLATIVE) POWER OF
ADMINISTRATIVE AGENCIES (DELEGATED LEGISLATION)
The Nature and Definition of Delegated Legislation- Any other legislation that is
subordinate or auxiliary to primary legislation is known as delegated (or sometimes
ancillary) legislation.
It means the exercise of legislative power by an agency that is subordinate to the
legislature.
The Need for Delegated Legislation or why we need delegation?
Clearly parliament does not have time or resources to enact every single piece of
legislation
it will be far from being flexible without delegating some of its powers to the executive.
Technicality Subject of Matter - Members of the parliament are not experts, and so they
cannot comprehend the technicality of the subject matter of some economic and social
issues. Technical matters are distinct from policy issues.
During emergency, it may not be possible for the parliament to pass necessary
legislation to cope up with the situations.
Theoretical Objections against Delegated Legislation/ to what extent/guiding
principles
-the doctrine of non delegability of power, which holds that power delegated to one
branch may not be redelegated to another. (People elect their representatives)
Since the constitution entrusted a power to one department should be exercised
exclusively by that department without encroaching up on the power of another.
Scope of Delegated Legislation
The legislature after formulating the fundamental laws, can delegate to administrative
agencies the authority to fill in gaps which is an authority necessary to carry out their
purposes.

130
only the subsidiary part of the legislation could be delegated. the legislative body ought
to state an intelligible principle and that the executive branch would merely fill in the
details.
The delegated legislation must be consistent with the parent/principal act and must not
violate legislative policy and guidelines.
The delegate cannot exercise more legislative power than the delegator.
Form and Classification of Administrative Rule Making
1) Regulation- Art 71(13) of the F.D.R.E.C, the council of ministers has the power of
issuing regulations.
2) Directive- are issued by each admve agency to implement regulations and other
primary legislations.
In other classification
A-Enabling act- Such acts contain an “appointed date” clause under which the power is
delegated to the executive to appoint a date for the act to come into operation. the
legislature prescribes the gun and the target and leaves it to the executive to press the
trigger.
B-Extension and application act- used for the extension and application of an act in
respect of a territory, or a given for duration of time.
C-Dispending and suspending act- to make exemptions from all, or any provision of
the act in a particular case or class of cases.
D- Classifying and sanctioning acts- to fix standard of purity, quality or fitness for
human consumption.
E- Penalty for violation acts - to prescribe punishment for the violation of rules.
UNIT FIVE:
JUDICIAL POWER OF ADMINISTRATIVE AGENCIES
Meaning and Nature of Administrative Adjudication
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the agency’s decision must have a binding effect on the parties in dispute without any
need for confirmation by any other organ (conclusiveness of the agency’s decision).
While exercising their adjudicatory powers, administrative agencies normally follow
preset procedures.
interpretation of laws, application of laws to resolve specific factual disputes and
declaration of laws
the draft federal administrative procedure proclamation of Ethiopia (2001) exclude
some administrative acts, which may pass the general test, from the definition of
adjudication.
Forms of Administrative Adjudication
1)Informal Adjudication- it tries to provide the minimal statutory safeguards for the
protection of fundamental rights of individuals & it does not involve full-blown trial
type hearing.
hearing in the majority of cases does not involve oral hearing, but written submission of
opinions, arguments, data, and so on.
The more the process of administrative adjudication is highly formalized, the less would
be the resultant advantages sought from the delegation of adjudicatory powers to
administrative agencies.
2) Formal Adjudication- is an almost full-blown trial type hearing like court from
notification of charges to rendering decision.
The greater an agency’s action tends to encroach to the fundamental constitutional
rights of individuals, the greater should be the procedural protections provided to such
individuals.
To date, Ethiopia has not come up with an instrument that provides uniform standards
or guidelines that regulate administrative agencies’ adjudication process.
Federal administrative agencies can refer to this draft document (2001) like any other an
unbinding legal literature at their discretion & there is the principles of due process of
law.
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Tribunals and the Tribunal System
Tribunals are administrative courts w/c are the forums where administrative disputes are
being formally resolved.
Tribunals are bodies established outside the structure of ordinary courts to adjudicate
disputes that involve the government as a party on matters pertaining to governmental
functions.
The Advantages and Disadvantages of Administrative Adjudication
It is done with the purpose to provide cheap, accessible, informal, convenient, speedy
(expediency) and specialized justice.
But there will be lack of legal expertise, partiality (as many or all of the members of the
administrative tribunals are at the same time employees of the various offices or
agencies, they might not be free from bias and partiality towards the agency), violation
of the principle of separation of powers and rule of law (b/c adjudication is the primary
business of ordinary courts)
The Organizational Structure of Administrative Tribunals
In Ethiopia, like in many common law countries, there is no integrated administrative
justice system. There are some sector wise tribunal-like adjudicating agencies/ known
by different names such as disciplinary committees, boards, commissions and so on,
that have the first instance (original) & appellant jurisdiction.
There are also second instance (reviewing agencies/tribunals) that are formed by
statutes to hear grievances on appeal in different areas of the administration activities.
Eg. Federal Civil Service Commission Appeal Tribunal, the Social Security Appeal
Tribunal and the Tax Appeal Tribunal.
In 2001 procl, intended to establish “Federal Administrative Grievances Appellate
Court”, which is a division within the Federal High Court.
Qualification, Appointment and Dismissal of Administrative Judges
There is no general requirement set.
Inquiries- are organs concerned with fact-finding directed towards making
recommendations on questions of policy.
The typical tribunal finds facts and decides the case by applying legal rules laid down
by statute or regulation. The typical inquiry hears evidence and finds facts, but the

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person conducting it finally makes a recommendation to a minister as to how should the
minister act on some questions of policy.
UNIT SIX- CONTROLING MECHANISAMS OF GOVERNMENTAL POWERS
The Need for Controlling the Powers of Government -for controlling abuse of
powers.
Controlling Mechanisms- Internal administrative review by superior officials,

Parliamentary control, Political control, External administrative review by tribunals,
External scrutiny and recommendations by Ombudsmen and other watchdog

institutions, mass media controlling and Judicial control.
Benefits
 Improves the quality, efficiency and effectiveness of government decision-
making;
 Enables people to test the legality and merits of decisions that affect them;
 Provides mechanisms for ensuring that the government acts within its lawful
powers;
 Provides mechanisms for achieving justice in individual cases and
 Contributes to the accountability system for government decision-making.
UNIT SEVEN: JUDICAL REVIEW
Judicial review Vs. Merits Review(Appeal)

In terms of purpose and scope, merits review of an agency’s decision is different from
judicial review (technical review).
the purpose of merits review action is to decide whether the decision which is being
challenged was the ‘correct and preferable’ decision.

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The primary purpose of judicial review is to keep government authorities within the
bounds of their power.In Judicial Review we just determines whether the decision is
legal or not but never give new decision.
The issue in merits review is to test whether decision complained is ‘right or wrong’ &
the reviewing body would make a different decision.
Merits review is said to be the sole responsibility of the executive, because the person or
tribunal conducting the review ‘stands in the shoes” of the original administrative
decision maker.
in judicial review, while reviewing an agency’s decision, the court is concerned with the
legality or illegality of the decision under review.
The reviewing court does not substitute its own new decision in place of an agency’s
invalidated decision on account of illegality.
Unlike merits review which is statutory in origin, the source of judicial power is not
statute since it is inherent power of the court to review; statutory authority is not
necessary the court is simply performing its ordinary functions in order to enforce the
law.
The Bases of the Power of Courts to Supervise Administrative Action
1)a group of statutes which establishes an agency and incorporates provisions for the
review of its actions.
2) there is a branch of remedies which has been developed by the combined action of
the common law and statutes consolidating, simplifying, or in some other ways
reforming the common law remedies.
In Ethiopia, there is no clearly defined jurisprudence on the evolution and status of the
judicial review.
The power of the court to review administrative decisions, thus, may be derived from
the very principle of separation of power that vests judicial power in the judiciary and
the doctrine of rule of law enshrined under the FDREC.

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the parent acts that create the respective agencies may also empower courts to review
administrative decisions under specified conditions.
Grounds of Judicial Review - to test the lawfulness of government’s decisions.
-When there exist substantive ultra vires (where the decision maker passes decisions on
matters falling outside the boundary of his statutory powers)
-Procedural ultra vires(Even if the decision-maker passes a decision within the scope
of the statutory power conferred upon him, a decision may passed disregarding
mandatory (formal) procedural requirements.)
The term ‘ultra vires’ means ‘without power’, while ‘intra vires’ means ‘within power.’
- Jurisdictional Error (either due to the wrong interpretation of the law or the wrong
appreciation of facts that are essential conditions precedent for assuming jurisdiction
over a subject matter.)
- errors of law- ‘errors going to jurisdiction’ (jurisdictional errors of law) and errors of
law ‘within jurisdiction’.
- failure to discharge a statutory duty - abuse of power (broad ultra vires) -
Unreasonableness
- proportionality- a sever penalty for a small offence may be challenged based on the
principle of proportionality or reasonableness.
- irrationality-the distinction between irrationality and unreasonableness is not as such
clear. But
Failure to exercise discretion properly, abusing it, failing to exercise any discretion at
all, An authorized delegation, applying policy without flexibility: Uses of power for an
improper purpose or to frustrate the legislative purpose; Forming decision on basis of
irrelevancies or ignoring relevant factors; And unreasonableness r in it.
-Bad Faith
Limitations on Judicial Review

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1)Standing -in order to obtain leave/permission to bring an action for judicial review,
the applicant must havevested/sufficient interestin the matter to which the application
relates. Article 37 of FDREC.
In determining whether or not the applicant has sufficient interest (locus standi) for
judicial review, the general opinion is that the legal and factual circumstances of each
case need to be considered critically.
the purpose of the standing requirements is simply to ‘filter out’ unmeritorious,
frivolous or trivial applications, and thereby to save the court time.
Concerning application for judicial review by pressure groups, there is no consistent
practice among jurisdictions.
2) Justiciability- “Justiciable controversy” is a controversy in which a present and fixed claim
of right is asserted against one who has an interest in contesting; rights must be declared upon
existing state of facts and not upon state of facts that may or may not arise in future.”
Courts are expected to entertain only issues that can be legitimately judicialized (justiciable
issue) – issues that can be conclusively resolved through the application or interpretation of
laws in force.
So, the judiciary should refrain from unduly interfering in matters that are exclusively
entrusted to the other organs of the government.
3) Exhaustion and Ripeness- Judicial review is the last resort that can be invoked by a party
aggrieved by the decision of an administrative body after exhausting all the avenues or agency
internal remedies available in the concerned agency.
In order to invoke judicial review, the case complained of must be ‘ripe for review’. It
requires the complainant to wait until the concerned agency has passed its final decision.
Both requirements are designated to prevent premature court intervention in the administration
process.
4)Finality Clause- although the source of the reviewing power of the court is not statute, such
power can be excluded by incorporating a finality clause in a statute (the Parent Act).

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However, such exclusion has to be expressly stated if it is needed to have effect in limiting or
eliminating the inherent power of the court.
But what about in case the legality of the finality clause that prohibits judicial review is
questionable? In Eth, where the constitutionality of the finality clause is a matter of
interpretation, this is exclusively the power of the House of Federation.
UNIT EIGHT: REMEDIES AND GOVERMENT (ADMINISTRATIVE)
LIABILITY
Remedies- the varieties of awards/relieves that may be granted by the reviewing court
following an application for judicial review.
1)Public Law Remedies- Technically speaking, they are prerogative remedies & may be
invoked by an application for leave for judicial review but this is not the case in most private
law remedies.
- certiorari- also referred to as quashing order, is a procedure through which the

reviewing court investigates the legality of an agency’s decision complained of, and
will quash or nullify where the decision in question is found to be ultra vires.
-prohibition- is an order issued by a higher court to prevent an inferior tribunal or

administrative authority from exceeding or from continuing to exceed its authority, or
from behaving ultra virally while dealing on matters that affect the interest of the
complainant. The applicant may seek both.
-Mandamus (mandatory order)- certiorari and prohibition are concerned with control
of the exercise of discretionary powers, whereas the prerogative order of mandamus is
designed to enforce the performance by governmental bodies of their duties.
- Quo warranto- was originally a prerogative writ which the Crown [in the United
Kingdom] could use to inquire into the title to any office or franchise claimed by the
subject until the 16th C.

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-habeas corpus (produce the body) physical release, is used to obtain the release of
someone who has been unlawfully detained, e.g., wrongfully arrested.
2. Private (Ordinary) Law Remedies
- An injunction -it is in the discretion of the court whether or not to grant it. It is a court
order, which in the majority of cases that orders the party to whom it is addressed not to
do a particular act.
-Declaration- This is simply asking the court to make a ruling on what the law is says in
relation to a certain uncontested fact. Its main purpose is to determine or ascertain what
the law says without changing the legal position or rights of the parties.
-damages (compensation)- it is to repair the pecuniary or non-pecuniary harm inflicted
upon the complainant because of administrative wrongs.
Liability of the Administration
Like the practice in English, but unlike the French one, the tortuous liability of the
administration (the state and its servants) in Ethiopia is governed by the ordinary law of the
country. And like the French practice, but unlike the English one, the tortuous liability of the
state and its servants in Ethiopia is not limited to fault based liabilities.
Concerning the contractual liability of the state, too, the practice in Ethiopia neither fits the
common law nor the continental law counter parts. Normally, the state is contractually liable
for damages it caused to a contracting party due to breach of its contractual obligation. Special
provisions that particularly deal with administrative contract are incorporated under the
Ethiopian Civil Code.
regular courts determine the contractual liability of the state and its administrative units in
Ethiopia, like the common law counter parts; but unlike the practice in French where
administrative courts entertain jurisdiction on disputes related to administrative contract.
while providing immunity to some officials seems acceptable from policy perspective, it
should not be done at the expense of individual victims.

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7 TAX LAW
Chapter One: General Introduction
Definition and Classification of Taxes
Taxes are defined to be burdens, or charges, imposed by "the legislative power of a

state upon persons or property," to "raise money for public purposes." It is a power
inherent in sovereignty, and without which constitutional government cannot exist.
A tax is a compulsory contribution of persons toward the needs of government.
(a) that a tax involves coercion upon its bearers,
(b) who are in every case, either natural or legal persons, and
(c) a specific public purpose as its end. Taxation includes the processes of levying,
collecting, and paying taxes.
A commonly applied classification of taxes is into direct and indirect taxes. The
classification of taxes into direct and indirect owes to the relationship between the
nature of the taxes and the reason for payment of the taxes. it is based on the shiftbalilty
of burden
A direct tax- the taxpayer is not able to pass the burden to someone else. Accordingly,
direct taxes are paid entirely by those persons on whom they are imposed.

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An indirect tax- is a tax whereby the taxpayer’s burden to pay the tax can easily be
passed on to another person.
In sharing of revenues, taxes are grouped into three: central (that of the Federal
Government), regional and joint.
Sources of gov't revenue

1. tax - major source for capitalist ctry
2. Profit from public enterprises- major source for socialist ctry
3. sale of public property
4. Loan
5. minting of money
6. fine and penalities
7 service charges
8. aid and donation.
# Tax base - is an activity(phenomenan or situation) upon which tax obligation is
imposed. eg. o/p, emp't
- tax obligation in Ethiopia is a matter of residence rather than citizenship or nationality.

Ethiopians living abroad do not have tax obln.
# Tax rate - is the way to determine the tax obligation. it is determined on the basis of %
General Theories and Principles of Taxation
*An individualistic theory - Every person needs, say, protection and justice, and
experience shows that these can best be obtained in a society; the taxes he/she pays may
be a quid pro quo, a payment for the services rendered.
quid pro quo - means 'u pay tax but couldn't expect proportional return'

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* socialistic view- a State can be considered as the most definite institution in society;
and, further, since from one point of view wealth has no meaning except in a society,
the part played by that society in the production of wealth may be looked upon as
making the State "the residual owner of all income which exceeds the requirements of
maintenance and normal growth”
The two central principles of taxation relate to the impact of tax on efficiency
(concerned with the allocation of resources) and equity (fairness) (concerned with the
distribution of income). A good tax system should be efficient in that it should be able
to waste as little money and resources as possible.
Efficiency can be measured against three standpoints: administrative costs, compliance

costs and excess costs. These three relate to the cost of operation of the tax system, to
its flexibility and certainty.
equity or fairness is further highlighted by two principles: the ability-to-pay principle

and the benefits principle. The ability-to-pay principle implies two things:
i) Horizontal Equity: People in equal positions should be made to pay the same
amount of taxes.
ii) Vertical Equity: A tax system should distribute the burden of paying taxes fairly
across people with different abilities to pay.
Principles of Taxation
Adam Smith dev'd 4 canons of taxation:
1. Equality/equity - pay't equivalent to what we recieve
2. Certainty- relate to law ( the tax payer must know how much he will pay in
advance)
3.Convinience- the mode, place, time
4. Economy/efficiency - cost of collection is less than tax collected
5. Productivity- - expense of gov't should be covered by tax
6. Boyancy/Economic growth - GDP increase by increasing tax rate
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7. Flexibility/Elasticity - change of tax law within time to react with response
of tax payer
8. Simplicity - plain or clear for ordinary person to understand
9. Diversity- multiple tax bases
10. Neutrality - only to get revenue, not to discourage sectors, group, indvl...
11. Education - informing public
12. Co- ordination - to prevent double taxation
- Minimum Tax Gap/TG = Tax due - tax actually collected

- principle of appropriate gov't revenue/ pple of forseablity - tax system is
able to predict the expected income.
Advoriem tax - tax on the value of the item
Specific tax - tax per unit. eg. Excise tax
General Introduction to Fiscal Federalism and Division of Revenues under the
Ethiopian Constitution
fiscal federalism is the study of how competencies (expenditure side) and fiscal
instruments (revenue side) are allocated across different (vertical) layers of the
administration.
The concept of fiscal Federalism embraces 3 things
1. Distribution of power( Expenditure assignment)
2. The tax assignment
3. Inter gov'tal revenue transfer
It is the division of public sector functions and finances among different tiers of
government.
While fiscal federalism constitutes a set of guiding principles, a guiding concept that
helps in designing financial relations between the national and sub-national levels of the
government, fiscal decentralization on the other hand is a process of applying such
principles.
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The main economic rationale behind fiscal decentralization is improving efficiency of
public resource utilization, creating enabling environment for private sector
development and the growth of the national economy.
- the ideas of fiscal federalism are relevant for all kinds of government, unitary, federal
and confederal.
Application differs because unitary and federal governments differ in their political &
legislative context and thus provide different opportunities for fiscal decentralization.
fiscal federalism is a general normative framework for assignment of functions to the
different levels of government and appropriate fiscal instruments for carrying out these
functions.
Fiscal federalism in Ethiopia has been adopted within a unique political landscape of
ethnic federalism.
Fiscal federalism derives its nature and characteristics from constitutional provisions as
well as the state of economic development, the pattern of income and resource
distribution, and the institutional capacity of the system.
Type of tax
1. Income tax/Direct tax
 Emp't tax
 profit income
 Rent income
 income of self- employed
 others- petroleam tax, Agricultural tax ( state's tax it)
2. Consumption (indirect) tax
 Sales/ Vat, Turnover
 Custom duty
 stamp duty
 excise tax
 import tax
 others chat tax, sur tax(only on imported tax)
3. Property tax/Direct tax branch
 house tax
 car
 share
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 others- livestock
Reading of Art. 95, 95, 51 of FDREC - 3 powers of federal gov't

a) Exclusive power of taxation
I) Consumption tax
- cutom duty is the task of federal gov't to regulate int'l trade
- sales and excise tax- on federal enterprises. eg. Etn Airlines
- stamp duty on federal matters
II) Direct income tax
- tax on federal employees & int'l orgns employees
- profit tax on transportation services. air , sea, rail
- profit tax on federal public enterprises
- rental income tax on fed owned buildings
- National lotteries ( game of chance) - generally lottories of national level are to be
administered by fed gov't
- royalties(pay't for who write book, music.. for sale or performance) or intellectual ppty
(copy rht, patent)
B. Concurrent power of taxation.- art. 98
STATE power of taxation
a) Exclusive power of taxation
I) income tax
- emp't tax
- Agricultural income tax
- Rental income tax
- Capital gain tax on privately owned commericial houses in the house
- Sales on the individual trader - vat/Turnover
- Sales on the state public enterprises
-Excise tax on state public enterprises
# The Ethiopian Tax Reform of 2002

coupled by a series of reduction in the import tariff, excise tax and income tax and
widening of the budgetary deficit, introducing a neutral and efficient tax, i.e. the VAT
with broad tax base VAT was considered. since January, 2003.
Major Types of Taxes in Ethiopia
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1. Value Added Tax (VAT) - This is a sales tax based on the increase in value or price
of product at each stage in its manufacture and distribution.
2. Excise Tax - this is imposed and payable on selected goods, such as, luxury goods
and basic goods which are demand inelastic. It is the tax on goods that are hazardous to
health and which are causes to social problems will reduce the consumption thereof.
('Excise Tax Proclamation No. 307/2002')(a) when imported and (b) when produced
locally at the rate prescribed in the schedule. Computation of excise tax is applied (a) in
the case of goods produced locally, production cost and (b) in the case of imported
goods, cost, insurance and freight /C.I.F./. Payment of excise tax for locally produced
goods is by the producer and for imported goods by the importer. Time of payment of
excise tax for imported goods is at the time of clearing the goods from the customs area,
and for locally produced goods it is not later than 30 days from the date of production.
3.Turnover Tax- this is an equalisation tax imposed on persons not registered for
value-added tax to fulfil their obligations and also to enhance fairness in commercial
relations and to complete the coverage of the tax system.
Administrative feasibility considerations limit the registration of persons under the
value-added tax to those with annual transactions to the total value exceeding 500,000
Birr.
Rate of turnover tax is 2% on goods sold locally and 10% on others; Proc 307/2002.
4. Income Tax-income taxable under the Ethiopian Income Tax Proclamation No.
286/2002. Art. 6
 Income from employment;
 Income from business activities;
 Income derived by an entertainer, musician, or sports person from his personal
activities;
 Income from entrepreneurial activities carried out by a non-resident through a
permanent establishment in Ethiopia;
 Income from movable property attributable to a permanent establishment in
Ethiopia;

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 Income from immovable property and appurtenances thereto, income from
livestock and inventory in agriculture and forestry, and income from usufruct and
other rights deriving from immovable property that is situated in Ethiopia;
 Income from the alienation of property referred to in (e);
 Dividends distributed by a resident company;
 Profit shares paid by a resident registered partnership;
 Interest paid by the national, a regional or local Government or a resident of
Ethiopia, or paid by a non-resident through a permanent establishment that he
maintains in Ethiopia;
 License fees including lease payments, and royalties paid by a resident or paid by
a non-resident through a permanent establishment that he maintains in Ethiopia.
5.Business profit tax- taxable business income of bodies is taxable at the rate of 30%
Sources of Ethiopian Tax Laws
Tax laws basically emanate from legislative, administrative and judicial sources.
The first law that can be taken as a source is the FDREC which has numerous
provisions dealing with the administration of taxes. Then after, there are a number of
proclamations and regulations dealing with taxes in the country.
Summary
Tax is a compulsory contribution of wealth of a person or body of persons for the

service of the public powers. As such, it is compulsory; we have to pay it whether we
like it or not; it is a definite contribution, a giving up of the individual's wealth that is to
say, it is a sacrifice for the use of the public powers, which include, of course, the State
and the local authorities. Taxation has a history that goes back to the earliest times; as
early as the Axumite period for the case of Ethiopia.
That there are different kinds of taxes is perfectly obvious, but all of them can be placed
in one of two large classes. Taxes are either direct or indirect. A direct tax is one which
is demanded from the very persons who it is intended or desired from. On the other
hand, indirect taxes are those which are demanded from one person in expectation and
intention that he/she shall indemnify himself/herself at the expense of another. Obvious
examples are the income and inheritance taxes on the one hand, and value added tax

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and customs duties on the other. Taxation is based on the two major principles of
efficiency and equity.
Per the current system of fiscal federalisms and division of revenues in Ethiopia, the
FDRE Constitution provides that the Federal Government and the States all collect
taxes and shall share revenue, taking the federal arrangement into account. The laws
that govern taxation may emanate from the three sources namely legislative,
administrative and judicial. Most Ethiopian tax laws however emanate from legislative
sources.
Tax Evasion - intentional, illegal act where as
Tax Avoidance - legal, non-criminal way of shifting to low tax burden business
The objectives/purpose of Tax

1. Allocative function - provision of pub goods & services
2. Redistribution function- to realize even distribution. eg progressive tax, wealth tax
3. Stabilization function - to stabilize unemp't, inflation, instability of eco growth
4. Hazard aversion - gov't may impose tax for purpose of non - consumption. eg. excise
tax
Chapter II: Income Tax
brief history
The concept of income taxation was initially introduced in Ethiopia in the year 1944.
The 1960 proclamation of income tax(modern).
The 1974- amended 1960 income tax law- socialist influneced
1991- Federal arrangment- the tax law amended

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In 2002- Revision and consolidation of income tax was undertaken - 286/2002
proclamation
General Definitions and the Notion of Income

According to the proc 286/2002, income is defined as “every sort of economic benefit
including nonrecurring gains in cash or in kind, from whatever source derived and in
whatever form paid credited or received”. Its sources are listed down in Article 6.
Taxable income vs. Gross income
‘gross income’ is taken to mean the total or aggregate income received by an individual.
‘taxable income’ refers to the amount of income on which actual income tax is charged,
levied and collected after all deductions have been made in accordance with the relevant
laws.
Tax liability = tax rate *times taxable income
Income Tax Jurisdiction:
Global Jurisdiction on Residents - bases on tax payer & taxing state. residents pay tax
with respect to worldwide income. Art. 3(1) IP.
Source Jurisdiction on non-residents
Income Tax Proclamation of 2002 reveals that, in Ethiopia, income tax has global
jurisdiction on residents whereas it has a source jurisdiction on non-residents.
the proclamation has applicability on non-residents of the country to the extent that the
source of their income is in Ethiopia, art 3/2 of IP and 10(3)b of IR
The Foreign Tax Credit- Article 7- if during the tax period a resident derives foreign
source income, the Income Tax payable by that resident in respect of that income shall
be reduced by the amount of foreign tax payable on such income.
However, the reduction of the Income Tax shall not exceed the tax payable in Ethiopia
that would otherwise be payable on the foreign source income.
The Scheduler System of Ethiopian Income Taxation
There are the global and the schedular systems of taxation.

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In the global system of income taxation is that the tax is imposed on the total income of
an individual regardless of the types of activities that he/she pursues and regardless of
the sources from which he/she obtained his/her income. Individual has to declare his/her
aggregate income for the purpose of taxation. Predominantly USA know by using this
system.
the scheduler system

-takes the d/t or various sources of income of an individual into consideration for the
purpose of taxation.
-income is identified by its sources and each source has its own procedures and rates for
the determination of income tax; thereby requiring an individual to declare his/her
income from each source separately.
-each source of income is considered to have its own identifying unique features for the
purposes of taxation.
-before taxation, sources of income have to be properly identified according to the
correct schedule set by the system.
1)Schedule A Income- collected from employment.
Articles 2(12) and 12 employment is any arrangement, whether contractual or
otherwise, whereby an individual to be called the employee is engaged, whether on a
permanent or on a temporary basis, to perform services under the direction and control
of another person to be called the employer.
2)Schedule B Income- earned from rental of buildings.
the principle that tax has to be paid on income from rental of buildings remaining as it
is, a taxpayer who leases furnished quarters is liable to pay tax on the income that
he/she receives from the lease of the furniture and equipment in the leased quarters.
3)Schedule C Income- earned from businesses, i.e. from entrepreneurial activities.
Article 2(6) business or trade refers to “any industrial, commercial or vocational activity
or any other activity recognized as trade by the Commercial Code of Ethiopia and
carried on by any person for profit.”
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businesses (bodies) are required to pay 30% flat rate of business income tax; and other
taxpayers under Schedule C, i.e., unincorporated or individual businesses are required
to pay taxes ranging from 10% to 35% according to the table. 19/2 Ip
*The periodic cost expiration is called depreciation. There are three factors that need to
be taken into consideration while calculating an asset’s depreciable cost, Initial cost,
Residual value; and Useful life.
2.4.2.1. Major Schedules of the Income Tax

The working law on income taxation in Ethiopia, the Income Tax Proclamation No.
286/2002, has classified sources of income into four schedules. Therefore, income
taxation in the country is undertaken based on these schedules, which have been
systematically classified as Schedule A, Schedule B, Schedule C and Schedule D.
Illustrations for each schedule.
2.4.2.2. Schedule A Income

The first schedule of our income tax law, as provided in the Income Tax Proclamation
of 2002, i.e. schedule A provides for the tax rate and modality of assessment of income
tax collected from employment. Articles 10-13 of the proclamation govern the
modalities and rates of taxation on such income.
a. The Definition of ‘Employment’ for Tax Purposes
As we have seen from the above explanation, Schedule A is devoted to employment

income tax. Accordingly, a major component of this schedule is the term
‘employment’; and thus it is only fair to start by defining that term before we enter
into a detailed discussion of the provisions that deal with this schedule.
As can be inferred from Articles 2(12) and 12 of the Income Tax Proclamation,
employment is any arrangement, whether contractual or otherwise, whereby an
151
individual to be called the employee is engaged, whether on a permanent or on a
temporary basis, to perform services under the direction and control of another person
to be called the employer.53 Contractors are excluded from the ambit of employees by
way of Article 2(12), which in (b) defines a contractor as an individual who is engaged
to perform services under an agreement by which the individual retains substantial
authority to direct and control the manner in which the services are to be performed. 54
Looking to the whole picture, employment income tax is tax that is imposed upon any
payments or gains in cash or in kind received from employment by an individual,
including income from former employment or otherwise from prospective
employment.55
b. Tax Rate and Tax Base
It has been established in the previous chapter that, at present, the rate of taxation is
progressive almost all over the world. Ethiopia is no exception to this; and the rate
provided by Schedule A of our income tax law is progressive as well. Accordingly, the
first 150 Birr that forms part of any taxpayer’s income is always not taxable. 56 Any
amount that is above this first 150 Birr will be taxed according to the Schedule, which
has a percentage of taxation from 10% to 35%. The Schedule clearly depicts that
employment income per month, which is between 151 and 650 Birr will be taxed 10%;
between 651 and 1400 Birr will be taxed 15%; between 1401 and 2350 Birr will be
taxed 20%; between 2351 and 3350 Birr will be taxed 25%; between 3351 and 5000
Birr will be taxed 30%; and the maximum percentage of income taxation, i.e., 35% will
be imposed on employment income that exceeds 5000 Birr.57
53
Articles 2(12) and 12, Income Tax Proclamation No. 286, 2002
54
Article 2(12)(b), Income Tax Proclamation No. 286/2002
55
Article 12(1), Income Tax Proclamation No. 286/2002
56
The justification behind this exclusion is embedded in the fact that the amount is so small and that the action of the government taking from this small
amount would defeat the whole purpose of taxation, which is distribution of wealth. Moreover, if the government opted to collect tax on such small an
amount, it would be spending more for the collection of the tax than it would collect from the source.
57
Article 11, Income Tax Proclamation No. 286/2002
152
c. Exclusions from Gross Income
As of principle, Schedule A applies to tax levied on employment income in the sense

that income tax will be levied on any gains in cash or in kind which have been received
from employment. However, certain exclusions have been provided by Council of
Ministers Income Tax Regulations No. 78/2002. According to Article 3 of the
regulation, the following categories of gains have been excluded from the ambit of
taxable income and thus will not be subjected to income taxation.
(a) amounts paid by employers to cover the actual cost of medical treatment of
employees;
(b) allowances in lieu of means of transportation granted to employees under
contract of employment;
(c) hardship allowance;
(d) amounts paid to employees in reimbursement of traveling expenses incurred
on duty;
(e) amounts of travelling expense paid to employees recruited from elsewhere
than the place of employment on joining and completion of employment or in
case of foreigners traveling expenses from or to their country, provided that
such payments are made pursuant to specific provisions of the contract;
(f) allowances paid to members and secretaries of boards of public enterprises and
public bodies as well as to members and secretaries of study groups set up by
the Federal or Regional Government;
(g) income of persons employed for domestic duties;
d. Exemptions
In addition to the exclusions provided by the income tax regulation, there are certain
exemptions that have been provided by Article 13 of the Income Tax Proclamation.

153
Accordingly, the following categories of income have been exempted from payment of
income tax as prescribed by the proclamation:
(a) income from employment received by casual employees who are not regularly
employed provided that they do not work for more than one (1) month for the
same employer in any twelve (12) months period;
(b) pension contribution, provident fund and all forms of retirement benefits
contributed by employers in an amount that does not exceed 15% (fifteen
percent) of the monthly salary of the employee;
(c) subject to reciprocity, income from employment, received for services rendered
in the exercise of their duties by: (i) diplomatic and consular representatives,
and (ii) other persons employed in any Embassy, Legation, Consulate or Mission
of a foreign state performing state affairs, who are nationals of that state and
bearers of diplomatic passports or who are in accordance with international
usage or custom normally and usually exempted from the payment of income
tax.
(d) income specifically exempted from income tax by: (i) any law in Ethiopia, unless
specifically amended or deleted by this Proclamation; (ii) international treaty; or
(iii) an agreement made or approved by the Minister.
(e) the Council of Ministers may by regulations exempt any income recognized as
such by this Proclamation for economic, administrative or social reasons.
(f) payments made to a person as compensation or a gratitude in relation to: (i)
personal injuries suffered by that person; (ii) the death of another person.
Exclusions/exemptions- art 3 of IR 78/02
- Art 12(3) of IP- Representative allowances. eg for guests
-Art 13(f)LP- payments made to a person as compensation or a
gratitude in relation to: (i) personal injuries suffered by that person;
154
(ii) the death of another person.
-pension...
-medical
-transportation allowances.
- Hardship allowances
- Travel allowances
- Foreign worker in Ethiopia w/r there is clear contractual statement - 3/e
Tax preferences - these are exclulsions, exemptions, and deductions. there are some
tax payers who need preferential treatment than others.
In Ethiopia, Income in kind- 12(1) is taxable, eg. like free meal, transportation vechile
- Rule of depression, deductions are not applicable for employment tax. there are
exemptions
2.4.2.3. Schedule B Income
The second schedule under the Ethiopian Income Tax laws, Schedule B, provides for
the taxation of income earned from rental of buildings. 58 Articles 14 -16 of the Income
Tax Proclamation are devoted to the modalities and rates of taxation on income
derived from the rental of buildings.
Art 15 - progressive on the income of persons acc. to schedule B. tax rate is flat on the
income of bodies 30%, not progressive.
a. The Scope of Schedule B Income
The income to be taxed under Schedule B of the Income Tax Proclamation is provided
by Article 14 of the Proclamation, which states that “Income tax shall be imposed on
the income from rental of buildings.” 59 The income from the rental of buildings is to be
computed based on the procedures, requirements and modalities set forth by Article
58
59
Article 14, Ibid
155
16 of the Proclamation. Accordingly, the principle that tax has to be paid on income
from rental of buildings remaining as it is, a taxpayer who leases furnished quarters is
liable to pay tax on the income that he/she receives from the lease of the furniture
and equipment in the leased quarters.60 Furthermore, if a lessee sub leases a building;
he/she is liable to pay the tax on the difference between the income from the sub-
leasing and the rent paid to the lessor; however, provided that the amount received
from the sub-lessor is greater than the amount payable to the lessor. 61 In the event
that the sub-lessor fails to pay, the owner of a building who has allowed the lessee to
sub-lease is liable for the payment of the taxes for which the sub-lessor is liable. 62
b. Deduction of Expenses under Schedule B
In calculating taxable income under Schedule B, gross income shall include all
payments in cash and all benefits in kind received by the lessor from the lessee; all
payments made by the lessee on behalf of the lessor according to the contract of
lease; as well as the value of any renovation or improvement made under the contract
of lease to the land or building, where the cost of such renovation or improvement
was borne by the lessee in addition to rent payable to the lessor. 63
However, the Income Tax Proclamation has provided for some deductions to be made
to the taxable income under Schedule B. These deductions include 64:
(a) taxes paid with respect to the land and buildings being leased; except income
taxes; and
60
Article 16(1)(a), Ibid
61
Article 16(1)(b), Ibid
62
Article 16(2), Ibid
63
Article 5(1), Council of Ministers Income Tax Regulations No. 78/2002
64
Article 16 (1)(c), Income Tax Proclamation No. 286/2002
156
(b) for taxpayers not maintaining books of account, one fifth (1/5) of "the gross
income received as rent for buildings furniture and equipment as an allowance
for repairs, maintenance and depreciation of such buildings, furniture and
equipment;
(c) for taxpayers maintaining books of account, the expenses incurred in earning,
securing, and maintaining rental income, to the extent that the expenses can be
proven by the taxpayer and subject to the limitations specified by this
Proclamation; deductible expenses include (but are not limited to) the cost of
lease (rent) of land, repairs, maintenance, and depreciation of buildings,
furniture and equipment in accordance with Article 23 of this Proclamation as
well as interest on bank loans, insurance premiums.
2.4.2.4. Schedule C Income

The third schedule of the Income Tax law of Ethiopia, Schedule C, provides for the
taxation of income earned from businesses interchangeable with trader in com.c, i.e.
from entrepreneurial activities.65 Articles 17 – 30 of the Income Tax Proclamation are
devoted to the modalities of assessment of taxation under Schedule C.
a. The Scope of Schedule C Income
Business income tax or corporate tax as commonly referred to relates to direct tax
levied by various jurisdictions on the profits made by companies or associations. 66 As
Schedule C applies to business income tax, it is only proper to start this discussion by
defining what a business is. According to Article 2(6) of the Income Tax Proclamation,
business or trade refers to “any industrial, commercial or vocational activity or any
other activity recognized as trade by the Commercial Code of Ethiopia and carried on
65
Article 17, Ibid
66
Gebrie Worku Mengesha, Tax Accounting in Ethiopian Context, 2nd Ed., Alem Printing Press, Ethiopia, 2008
157
by any person for profit.”67 And when one looks to the Commercial Code for reference,
we can find that Article 5 provides for a definition to be referred to. Accordingly,
Article 5 of the Commercial Code reads as:
Art. 5. - Persons to be regarded as Traders
Persons who professionally and for gain carry on any of the following activities shall be
deemed to be traders:
(1) Purchase of movables or immovable with a view to re-selling them either as
they are or after alteration or adaptation;
(2) Purchase of movables with a view to letting them for hire;
(3) Warehousing activities as defined in Art. 2806 of the Civil Code:
(4) Exploitation of mines, including prospecting for and working of mineral oils;
(5) Exploitation of quarries not by handicraftsmen;
(6) Exploitation of salt pans;
(7) Conversion and adaptation of chattels, such as foodstuffs, raw materials or
semi-finished products not by handicraftsmen;
(8) Building, repairing, maintaining, cleaning, painting or dyeing movables not by
handicraftsmen;
(9) Embanking, leveling, trenching or draining carried out for a third party not by
handicraftsmen;
(10) Carriage of goods or persons not by handicraftsmen;
(11) Printing and engraving and works connected with photography or
cinematography not by handicraftsmen;
(12) Capturing, distributing and. supplying water;
(13) Producing, distributing and supplying electricity, gas, compressed air
including heating and cooling;
(14) Operating places of entertainment or radio or television stations;
67
158
(15) Operating hotels, restaurants, bars, cafes, inns, hairdressing establishments
not operated by handicraftsmen and public baths;
(16) Publishing in whatever form, and in particular by means of printing,
engraving, photography or recording;
(17) Operating news and information services;
(18) Operating travels and publicity agencies;
(19) Operating business as an agent, broker, stock broker or commercial;
(20) Operating a banking and money changing business;
(21) Operating an insurance business.68
The taxable income of the income earned by a person according to the above cited
provision of the Commercial Code is to be taxed according to Schedule C of the Income
Tax Proclamation. And according to Article 18 of the Income Tax Proclamation, taxable
business income is to be determined “per tax period on the basis of the profit and loss
account or income statement, which shall be drawn in compliance with the Generally
Accepted Accounting Standards”69, subject to the provisions of the Income Tax
Proclamation and subsequent directives to be issued by the Tax Authority.
b. The Peculiarities of Schedule C Income
The tax rate of Schedule C income is provided by article 19 of the Income Tax
Proclamation. Accordingly, businesses (bodies70) are required to pay 30% flat rate of
business income tax; and other taxpayers under Schedule C, i.e., unincorporated or
individual businesses are required to pay taxes ranging from 10% to 35% according to
the following table71:
68
Article 5, Commercial Code Proclamation, 1960
69
70
Body is defined in Article 2(2) of the Income Tax Proclamation as any company, registered partnership, entity formed under foreign law resembling a
company or registered partnership, or any public enterprise or public financial agency that carries out business activities including body of persons
corporate or unincorporated whether created or recognized under a law in force in Ethiopia or elsewhere and any foreign body’s business agent doing
business in Ethiopia on behalf of the principal.
71
159
Birr 0 to 1, 800 0%
Birr 1,801 to 7,800 10%
Birr 7,801 to 16,800 15%
Birr 16,801 to 28, 200 20%
Birr 28, 201 to 42, 600 25%
Birr 42, 601 to 60, 000 30%
Over Birr 60, 000 35%
c. Deductions of Schedule C Expenses
Article 20 of the Income Tax Proclamation provides that deductions of Schedule C

expenses will be allowed for expenses incurred for the purpose of earning, securing,
and maintaining that business income. However, these deductions will be allowed only
provided that the taxpayer can prove the expenses and subject to the limitations
specified by law.72
d. Deductible Expenses73
Accordingly the deductible expenses under Schedule C are:
Art. 8, 10, 11, 14 of 78/02 Regulation + Art IP
1) The direct cost of producing the income. Good examples of such expenses are
the expenses incurred in manufacturing, importation, selling, transportations
etc
2) General and administrative expenses connected with the business activity.
These are expenses incurred for the maintaining of the business activity. eg.
Salaries of Admve personnel
72
73
Refer to Articles 21(1)(e), 21(2), 22, 23, and 27 - 30 of the Income Tax Proclamation No. 286/2002 and Articles 8, 10, 11, 13, 14 of the Council of
Ministers Income Tax Regulation No. 78/2002
160
3) Insurance Premiums payable on insurance directly connected with the business
activity.
4) Expenses incurred in connection with the promotion of the business inside and
outside the country subject to the limits set by the directives issued by the
Ministry of Revenue.
5) Commissions paid for services rendered to the business provided.
6) If the tax authority has reason to consider that the total amount of salaries and
other personal emoluments payable to the manager or managers of a private
limited company is exaggerated, it may reduce the said amount for taxation
purposes to the limit which, in view of operations of the company, appears
justifiable, either by disallowing the payments made, or in any other way which
may be just and appropriate.
7) Sums paid as salary, wages or other emoluments to the children of the
proprietor or member of the partnership(PLC)shall only be allowed as deduction
if such employees have qualifications required by the post to which they are
positioned.
8) Interest on loan, provided that the interest charged by the business is paid
a) To lending institutions recognized by the National Bank of Ethiopia;
b) To foreign banks permitted to lend to enterprises in Ethiopia (note here that
interest paid to foreign banks can only be deductible upon fulfilling); and
c) In excess of the rate used between the National Bank of Ethiopia and the
commercial banks increased by 2 percentage points.
9) art 11- Normally speaking gifts and donations are among non-deductible
expenses. However, gifts and donations will be allowed as deductions provided
that the following conditions are fulfilled:
a) The recipient of the donation is registered as welfare organization and where
it is certified by registering authority that the organization has record of
outstanding achievement and its utilization of resources and accounting
system operate with transparency and accountability;
b) The contribution is made in response to the emergency call carried by
government to defend the sovereignty and integrity of the country, to
prevent man made or natural catastrophe, epidemic or for any other similar
cause; and
c) The donation is made to non-commercial education or health facilities.
The deductions to be made per the above conditions can only be made where
the amount of the donation or grant does not exceed 10% of the taxable income
of the taxpayer.
10) Art. 23 IP - Depreciation allowances are deductible, provided that the
taxpayers keep satisfactory records showing the date and cost of acquisition of
161
the asset as well as the total amount deducted for depreciation since the date of
acquisition. Furthermore, in accordance to transferring government developing
organizations depreciation assets to determine taxable income and deductible
expense based on specific provisions of the Proclamation, which determine
price based on work out. Whereas if the result of the price bid is down,
calculations shall be on the purchase price.74
11) Reinvestment of profit of a resident share company or registered
partnership may only be allowed as deduction in an amount not exceeding 5%
of the taxable income of each accounting year. With regards to participation
deduction, if the taxpayer transfers the share or capital contribution in respect
of which deduction was allowed, the amount deducted shall be part of the
taxable income of the accounting year in which the transfer was affected and
shall be taxed as such. Furthermore, purchase of shares and capital contribution
made between related persons shall not be allowed as deduction.
12) Bad debts will be deductible for tax purposes on condition that:
a) An amount corresponding to this debt was previously included in the
income;
b) The debt is written off in the book of the taxpayer; and
c) Any legal action to collect the debt has been taken but the debt is not
recoverable.
13) In the determination of taxable business income of finance institutions, a
deduction shall be allowed for special (technical) reserves in accordance with
the directives issued by the National Bank of Ethiopia. The business income,
however, shall be increased by the amount drawn from such reserves. art. 26
14) For the purpose of ascertaining the income of a person for a tax period
from a business, there shall be deduction of the cost of trading stock of the
business disposed of by that person during that period. The cost of trading stock
deposed of during a tax period is determined on the basis of the average cost
method, which means the generally accepted accounting principle under which
trading stock valuation is based on an average cost of units on hand.
15) In addition to the above deductible expenses, certain deductions are
allowed to a limited extent as listed below:
a) Transport allowance in accordance with the Regulation of the Federal Inland
Revenue Authority.
b) Pension contribution, provident fund and all forms of retirement benefits
contributed by employers in an amount that does not exceed 15% of the
monthly salary of the employee.
c) Representation expenses over and above 10% of the salary of the employee
74
Article 9, Privatization of Public Enterprises Proclamation No. 146/1998
162
d) Deduction on capital expense for buildings and construction shall be
depreciated
e) individually on a straight-line basis at 5%
f) Intangible assets shall be amortized individually on straight-line basis at 10%.
Amortization is depreciation for Intangible assets/23(4) of Ip
g) Computers, information system, software products and data storage
equipment at 25%
h) All other business assets at 20%
i) Indemnity of deduction for financial organization
j) Losses carry forward, if the determination of taxable business income results
in a loss in a tax period, earlier losses being set off before later losses. With
regards to loss carry forward, depreciation shall be transferred when the Tax
Authority accepts the described book account. If the determination of the
taxable income results in a loss in a tax period, that loss may be set off
against taxable income in the next 3 periods, earlier losses being set off
before later losses. If during a tax period, the direct or indirect ownership of
the share capital or the voting rights of a body changes more than 25%, by
value or by number, the loss is set off against taxable income is on that
period and the previous period. A net operating loss may be carried forward
and deducted only for two periods of 3 years.
k) For the purposes of Article 27 of the Income Tax Proclamation, reinvestment
of profit by resident share company and registered partnership may only be
allowed as deductions in an amount not exceeding 5% of the taxable income
of each accounting year.
l) Interests paid to shareholders on loans and advances shall not be deducted
to the extent that the loan or advance in respect of which the interest paid
exceeds on average (during the tax period) four times the amount of the
share capital. This, however, does not apply to banks and insurance
companies.
m) The amount of deduction shall be allowed for a bad debt after the debt has
been taken but the debt is not recoverable.
e. Non-Deductible Expenses75
The non-deductible expenses under Schedule C are provided under Articles 21 and 9 of
the Income Tax Proclamation and the Income Tax Regulation respectively are:
75
Refer to Article 21, Income Tax Proclamation No. 286/2002
163
1. The cost of acquisition, improvement, renewal and reconstruction of business
assets that are depreciated pursuant to Article 23 of the Income Tax
Proclamation, which deals with depreciation;
2. An increase of the share of capital of a company or the basic capital of a
registered partnership;
3. Voluntary pension or provident fund contributions over and above 15% of the
monthly salary of the employee;
4. Declared dividends and paid out profit shares;
5. Interest in excess of the rate used between the National Bank of Ethiopia and
the commercial banks increased by 2 percentage points;
6. Damages covered by insurance policy;
7. Punitive damages and penalties;
8. The creation or increase of Reserves, provisions and other special-purpose funds
unless otherwise allowed by the Income Tax Proclamation;
9. Income tax paid on Schedule C income and recoverable Value Added Tax;
10.Representation expenses over and above 10% of the salary of the employee.
Here representation allowance refers to hospitality expenses incurred in
receiving guest coming from outside the enterprise in connection with the
promotion and enhancement of the business;
11.Personal consumption expenses;
12.Expenditures exceeding the limits set forth by the Income Tax Proclamation or
subsequent regulations;
13.Entertainment expenses. Here entertainment refers to the direct or indirect
provision of food, beverages, tobacco, accommodation, amusement, recreation
or hospitality of any kind to any person; art 8 IR
14.Donation or gift are non-deductible to the extent that the recipient of the
donation is not registered as a welfare organization and/or the organization
does not have a record utilization of resources and accounting system, which
operates with transparency and accountability; and the contribution is made in
response to emergency call carried by government and the donation or grant
exceeds 10% of the taxable income of the taxpayers;
15.Sums paid as salary, wages or other personal emoluments to the proprietor or
partner of the enterprise;
16.Expenditure for maintenance or other private purposes in relation to the
persons mentioned above; and
17.Losses not connected with or not arising out of the activity of the enterprise.

164
In addition to the above mentioned non-deductible expenses, Article 30 of the Income
Tax Proclamation provides for certain exemptions from payment of business income
tax. These exemptions are:
1. Awards for adopted or suggested innovations and cost saving measures, and
2. Public awards for outstanding performance in any field
3. Income specifically exempted from income tax by the law in force in Ethiopia, by
international treaty or by an agreement made or approved by the Minister of
Finance and Economic Development.
Moreover, the revenue obtained by the Federal, Regional and local Governments of
Ethiopia and by the National Bank of Ethiopia from activities that are incidental to
their operations shall be exempt from tax under Schedule C.76
f. The Treatment of Capital Expenditures
i) Definition of Capital Expenditures

ii) Depreciation, Depreciation Recapture Rules77
As time passes, all plant assets with the exception of land lose their capacity to yield
services. Accordingly, the cost of such assets should be transferred to the related
expense accounts in an orderly manner during their expected useful life. The periodic
cost expiration is called depreciation. There are three factors that need to be taken
into consideration while calculating an asset’s depreciable cost. These are:
i) Initial cost
ii) Residual value; and
iii) Useful life
A calendar month is ordinarily the smallest unit of time used to calculate depreciation
expense and businesses may recognize partial year depreciation. They may also use
the four methods of depreciation namely, straight-line, units of production, declining
balance and sum of the year’s digits.
76
77
Refer generally to Article 23, Income Tax Proclamation No. 286/2002
165
For tax purposes in Ethiopia, pooling method is used for computer and information,
communication technology related equipments; and straight-line method for
buildings and intangibles. Residual value is not taken into consideration in determining
the depreciation expenses. Rather, the Tax Authority stated the annual percentage to
be used for determination of depreciation ex+pense for each type of plant asset.
In general, fine arts, antiques, jewelry, trading stock and other business assets not
subject to wear and tear and obsolescence shall not be depreciated. The acquisition or
construction cost, and the cost of improvement, renewal and reconstruction of
buildings and constructions shall be depreciated individually on a straight-line basis at
5%. The acquisition or construction cost and the cost of improvement, renewal and
reconstruction of intangible assets shall be amortized individually on a straight-line
basis at 10%. Computers, information systems, software products and data storage
equipments shall be depreciated according to a pooling system at 25%. Similarly, all
other business assets shall also depreciate according to a pooling system but at a rate
of 20%.
In all the above categories of depreciable assets, the specified rate of depreciation is
applied to the depreciation base of the category. The depreciation base shall be the
book value of the category as recorded in the opening balance sheet of the tax period:
a) Increased by the cost of assets acquired or created and the cost of

improvement, renewal and reconstruction of assets in the category during the
tax period
b) Decreased by the sales price of assets disposed of and the compensation
received for the loss of assets due to natural calamities or other involuntary
conversion during the tax period.

166
If the depreciation base is a negative amount, that amount shall be added to taxable
profit and the depreciation base shall become 0. If the depreciation base does not
exceed Birr 1, 000, the entire depreciation base shall be a deductible business
expense. If a revaluation of business assets takes place, no depreciation shall be
allowed for the amount of the revaluation.
Schedule D - Miscellaneous Income tax
Art. 31 et seq ITP, 15-17 IR
CHAPTER THREE: VALUE ADDED TAX
Brief Introduction to the Predecessors of VAT in Ethiopia
The concept of VAT was propounded first by American experts by 1920‘s. But at that
time, Americans failed to implement it. The modern concept of VAT was truly
introduced in France (1954)
In France, it was introduced to satisfy high demand of revenue on the part of the
government in order to rebuild France from the civics of WWII. more than 123 states
adopted.
In Ethiopia, VAT was introduced since January 1, 2003 designed to replace the out
dated sales tax, which has served for more than four decades, which was collected at
manufacturing level.
In other areas of taxation, where VAT is not regularly governing, turnover tax is
introduced.
The major rationales behind introducing VAT in Ethiopia are
-sales tax doesn’t allow collection on the added value created wherever sales
transaction is conducted but VAT does .

167
-VAT allows little room for evasion. Taxes in VAT are collected at multi stages and
business entities are allowed to have refund on the tax they paid for inputs (raw
materials such as labor, transportation, ware housing, etc).
-VAT enhances saving and investment. VAT is a consumption variety tax and does not
tax capital. The fact that the final burden lies on consumers raises awareness to have
means of reduction of payment for consumption at any possible incident. This
undoubtedly will change the extravagant way of life imposed from the custom, on the
part of final consumers.
-Out dated sales tax is not capable to generate adequate revenue for the government to
cover necessary expenditures. It enhances economic growth.
VAT from other sales taxes
VAT appears to be imposed on business entities as it belongs to sales tax family. In

reality however, business entities are simple agents to collect tax from individuals, who
bear the final burden, final consumers.
sales tax is normally levied at one stage of the whole marketing
the VAT proclamation does not provide flat definition for VAT. Blacks law D “VAT is
a tax assessed at each step in the production of a commodity based on a value added at
each step by the difference between the commodities production cost and its selling
price”
Types of VAT
1) Gross product type - taxes paid on purchases of capital goods fixed capitals and
depreciations there to are not allowed to be refunded.
2)Income type - refund on the purchase value of capital goods is prohibited like in case
of goods product type of treatment. But, unlike the previous one, it allows refund on the
periodic allowance for the depreciation value of capital goods.

168
3) Consumption type- the most used and widely accepted in most states of the world.
all business purchases including that of capital goods and related depreciations are
allowed to be rebated.
Advantage of VAT
- It avoids cascading effect of a tax ( Tax on Tax )- VAT works when raw material
passes through various manufacturing stages and manufactured product passes through
various distribution stages, tax should be levied on the incremental value at each stage
and not on the gross sales price.
-It is a more comprehensive and equitable tax system- Even though the ultimate
burden of VAT falls on the final consumer, VAT is collected by the government from
all sectors, that is, from import, manufacturing, wholesale and retail sectors.
-It reduces the possibility of tax evasion- In each stage, every transaction is made
using VAT invoice approved by the Tax Authority. In addition, each VAT register
person (supplier) has to maintain appropriate records on their sales and purchases
transaction those obligations make tax evasion difficult.
-It has less tax burden - the tax is collected in small fragment at different stages of
production and sales, hence, the VAT payers feel the burden of the tax less.
-It is neutral - VAT is expected to be perfectly neutral in the allocation of resources in
the form of production and commercialization b/c it is collected @ each stage.
-It improves productivity- a firm has to pay tax even though it runs into loss. The firm
cannot claim any exemption for loss because it pays taxes on the value produced and
not on profits. So, firm will always try to improve their performance and reduce the cost
of production.
-It promotes capital investment and saving- VAT is a consumption tax since one
pays VAT on its expenditure and has the option to save so as not to be taxed.
Furthermore, relief from tax on capital goods may encourage investment. Potential
investors also consider tax legislation as one of the factors in making investment
decision.
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-It enhances exports - Exports of goods and services in most countries that implement
VAT are liable to VAT at zero-rate. This may make export internationally competitive
and, thus, encourages exports.
Criticisms on VAT
-It is regressive in nature - A straightforward single rate VAT with few exemption
would tax lower income groups (the poor ) more heavily than the higher income groups
(the rich. No ability to pay). In order to compensate for its regressive effect, a number
of countries have exempted basic goods particularly food items from VAT.
-It requires advanced economic structure- it also requires proper record keeping of
invoices at each stage of production and sale by both the seller and buyer.
-It puts additional burden to tax authority- In VAT system, the manufactures,
wholesalers and retailers have to fulfill various legal formalities in the form of
maintaining various records, accounts, books, etc. the verification of those formalities
puts additional burden to the tax enforcing authorities.
-It is uneconomical- VAT system involves high cost of administration, assessment,

verification, collection, etc. hence, it is highly uneconomical.
-It has ream loopholes for tax evasion - Although VAT system requires proper record
keeping of invoices at each stage of production and distribution by both the buyer and
seller, it has ream loopholes for tax evasion. This may include
 Taxpayers could over report sales of zero rated goods;

 Taxpayers could use invoices they received for personal purchase to claim
tax credit;
 It enables buyers and sellers to strike secret deals with regards the issuance
of receipts;
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 It could lead to the formation of forged companies receipts to claim tax
credit on input VAT, etc.
Taxable activity- art 6
Taxable Transaction- is a process. It is related with supply of goods or rendition of

services, Art 7(3)
Registration for VAT
A.Obligatory Registration- Pursuant to Art 16(1) if the total taxable turnover

(transaction) over a period of 12 months exceeds 500,000 Ethiopian birr; the person
shall be registered for VAT.
B.Voluntary Registrations-Anybody interested may apply for voluntary

registration .But Art 17 provided a condition that shall be satisfied.
Zero-Rated Transactions- In Ethiopia, two rates are recognized on taxable

transactions: Standard rate and zero-rate, where the standard rate is 15% and zero rate
0%.
Zero-Rated Transactions is taxed at zero-rate of tax. In other words, the transaction by it

self is taxable subject to VAT in the sense included under Art 7(3) “taxable transaction”
But, the Law has given blessings so that the transaction (supply of goods or rendition of
services) are completely free from tax.
zero-rated transactions are directly or indirectly connected with export goods or

services to make domestic exporters more competent before international arena.
Exempt Transactions- is a transaction not subject to VAT. Thus the transaction is not
considered taxable transaction for social, economic or development reasons. Art 8/2
* in zero-rated transactions & exempt transactions of course, in both transactions,
persons are free from payment of taxes under VAT. But,

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Pursuant to Art 23, a registered person making exempt transaction is not entitled to
deduct input tax payable on its acquisition related to the making of exempt supplies and
is not entitled to issue covering exempt supplies. A person that purchases goods or
services exempt from tax is not entitled to claims an input tax credit for any tax in
relation to the prices of those purchases, even if acquired for use in taxable activity,
because the item was not purchased in a taxable transaction.In exempt transactions,
only the ouput is exempt. the input is taxable. No input tax credit for exempted.
VAT-on Imports- - Art 2(9) “import of goods” is to mean bringing goods in to

Ethiopia, according to customs legislation. Art 14 & 15, 7(4)
Tax Payable, Tax Credit Taxation and VAT Records
tax payable -the simple arithmetic difference obtained by deducting creditable taxes
from all taxable transactions. Art 20 & 21 , 23
tax credit (deductible tax) is an incentive that encourages persons to be participant in
VAT enforcement.
Powers of Levying and Collection Enforcement for VAT- the federal government
that has power to levy VAT in Ethiopia. But, VAT requires cooperation, regions are
given delegations to collect.
Regarding collection enforcement mechanisms, the FIRA (federal Inland Revenue

authority) is entrusted..
Penalties and Criminal Offences

-engaging in taxable transactions without registration - issuing incorrect
invoice
-issuing invoice without registration for VAT- Failure to maintain tax records,
file timely etc.
CHAPTER FOUR: TURNOVER TAX

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Scope - its scope is onsupply of goods, rendition of services,persons not registered for
VAT
Unlike VAT, where the threshold to identify persons subject to it is 500,000 birr ,turn
over tax is applicable for those whose annual transaction is below this amount save
voluntary registration for VAT.
No ToT on imports
-to equalize and enhance fairness in commercial relations
-make complete the coverage of tax system so as to increase government’s revenue

from taxation.
Rates of Turnover Tax- Art 4 incorporates two kinds of rates: 2% on goods sold
locally and for services rendered locally again in two rates:2% for contractors, grain
mails, tractors and combine-harvesters and 10% on others.
Obligations of Tax Payers under the Turnover Tax Law
i.Filing of Turn over Tax Return and payment- art 10
ii. Keeping Recodes- This obligation is common in income Tax proclamation and VAT
proclamation.
iii. Notification of changes in business name, address…
CHAPTER FIVE: EXCISE TAX
INTRODUCTION
Excise tax is one variety of sales tax like VAT and turn over tax but unlike turn over tax
and VAT, it is applicable not on all kinds of goods rather on selected goods. It is

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imposed on luxury goods and basic goods which are demand inelastic, hazardous to
health and societal problems. proc No 307/2003
Specific excise tax is imposed based on the amount of the item subject to tax. But
advalorem is calculated out from the value of the good.
Rationales to employ ET
- to improve government revenue by imposing excise tax payable on selected goods.
- to redistribute income and narrow the gap between rich and poor.
- to reduce their consumption hazardous to health and which are cause to social
problem.
Products subject to Excise tax- The scope of application of excise tax proclamation is
determined by the schedule attached to the proclamation. applicable to goods which are
either produced locally or imported from other countries. Art 3.
goods or products are related to luxury goods, goods dangerous to health and that cause
serious problems to the society, ranging from perfumes to tobacco and tobacco
products.
Tax-rates, Bases and Payment of Excise Tax
The rate varies from 10% in textiles and textile products to 100% for other alcohol
drinks, perfume and toilet waters; and motor vehicles above 1800 C.C.
Cost of production is taken as base to calculate the amount to be imposed on goods

produced locally. In respect of goods imported, the base of computation of the tax is
cost, insurance and freight (export rather than import is encouraged)
* In case of VAT, persons are allowed to deduct costs of productions/ inputs in general.
But in excise tax, since attached with luxurious and dangerous product, the value of the
object imported insurances and freight, are not deducted.
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Obligation of Tax Payers
-maintain books and accounts in accordance with accounting principles;

-submit to the authority necessary information for proper collection of the tax;
-comply with inspections by delegates of the tax authority; and
-respect all the obligations mentioned in the proclamations
CHAPTER SIX: CUSTOMS DUTIES
INTRODUCTION
Customs duty is tax like other taxes but imposed on imported goods or exported goods.
It is the best instrument to prevent or reduce importation of goods. It serves as trade

barrier whenever a state needs to ban or reduce importations to her territory, it can
imposed high rate in some good (excise taxation)
Powers and Objectives of Ethiopian Customs Authority/ ERCA
proclamation No 60/1997 , 368/2003
Customs Control and Administration
A.Time of control- The supervision time begins from the time they reached the customs
port through the completion of customs formalities until received by the importer in
case of imported goods.
B. Treatment of Means of Transportation- Means of transportation is also under the

control of the authority. Any master of means of transport engaged in the importation or
exportation of goods assumes a number of obligations as per Art 16 of proc No 60/97.
C. Declaration, Examination and Release of Goods- Customs declaration is lodged

after the arrival of goods at the port. The application for customs declaration helps to
clear goods from the authority with in short period of time.

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D. Goods in Transit, Temporary Importation and Exportation of Goods- “a transit
good” is the movement of goods from one country to another or by crossing the
Ethiopian territory, or from one customs station to another by the same or changing the
means of transport.
custom duties as a matter of fact is imposed on imported or exported goods. But,

exceptionally, temporarily imported or exported goods may not be imposed on
obligations of customs duty.
CHAPTER SEVEN: STAMP DUTY
Stamp duty is another form of taxation basically imposed on the services given to
individuals through affixing seals. Stamp is an official mark or seal placed on a
document especially to indicate that a requirement tax has been paid. proc. No.
110/1998.
Bases of the Duty
Art 3 of the stump duty proclamation exhaustively lists instruments chargeable with
stamp duty
Memorandum and articles of association of any business organization cooperative or

any other from of association, award, bonds, ware house bond, contractor agreements
and memoranda thereof, security deeds, collective agreement, contract of employment,
Lease, including sub-lease and transfer of similar rights, natural acts, power of attorney,
documents
Exemptions from Stamp Duty - For economic, Social, or administrative reasons, Art 7
CHAPTER EIGHT: SURVEY OF SOME REGIONAL TAXES
power of taxation is given to the federal government, state government or concurrently

for both central (federal) and state government.

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states in Ethiopia can impose taxation on incomes received within their territory but,
they cannot have say on the powers exclusively given to federal government.
At this juncture, it is expected that certain questions regarding power of taxation on

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

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8 Employment & labor law
Chapter I- Introduction
Employment relation is established through a contract of employment and it shall be

deemed formed where a person (the employee) agrees, directly or indirectly, to perform
work for and under the authority of another (the employer) for a definite or
indefinite period or piece work in return for wages.
*its sources of law, its definitional elements and its scope of application.
Sources of Employment or Labour law
1. public source - conventions, constitution, Recommendations
2. private sources - k of employment, collective agreements like by union, work rules

by employer.
Scope of application of employment/ Labour law and the concept of Exclusions
It is defined in art 2(3,1,2) of law law(377) and art 2(1&3) of civil servant law(515).
In order to apply emp't law, we must first ask 2 questions,

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I) is there any emp't r/n?
II) if yes, is this r/n excluded or not? Both labour law(art. 3(2&3)) and civil service pro.
2(1,2)
Chapter- II- Individual Employment Relation
Art.2 (3) with Art.4 (1) of the LP
Employment relations under the labour law and under the Civil Service have their own
peculiar features. In the labour law setting, the legal instrument is limiting itself towards
stipulating minimum conditions of labour providing sufficient room for flexibility for
further bargain by the parties either through contract or collective bargaining.
Under the Civil Service both min and max determined by law, however, conditions of
work are rigorously regulated by law and there is little or no room for negotiation. In
this sense most (if not all) the work conditions spelt out in the Civil Service instruments
are not only minimum but also the maximum.
Employment securities
- MLCs
- presumption of indefinite period
- matenal/paternal leave, sick leave, morning leave,
- wage - CSP has min wage but Lp has no min wage but it has wage protections
# Specific employment relations which are outside of the ambit of both the labour and
civil service employment regime should be mentioned in order to show that Ethiopian
employment regime is not purely dual.

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It rather has a “third regime” at the margin. For example employees such as the
policeand armed forces, domestic workers, management staff and others are within the
third regime.
Once a contract of employment is duly formed, the parties are expected to spell out
their respective rights and obligations under the contract exhaustively.
Suspension - temporary stoppage/interruption
Suspension is a situation where the employee will not be required to provide service to
the employer and the employer will not be obligated to pay wages and other benefits to
the employee.
the grounds or cause of suspension are:18
-Voluntary arrangement of the parties;
-Societal/ public interest; art 18(2&4)
-Due to reasons beyond the control of the parties employee - detention , employer
sub 5 eg. Btcy; Force majure...involuntary
-Due to disciplinary reasons(investigation). art 70 of CSP. The LP does not include it

but made this suspension possible when the grounds are put in the collective agreement.
Art 27(4)
compare
- art 18, 27/4 LP vs Art 45 & 70 of the Fed Civil Service proclamation/515
- d/ce b/n art 18(2,4) & art 82/83(2) of LP- wz pay't, for longer, very general but
82/83 is relatively the reverse.
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*CSP - suspension by law=Max two months
* LP - suspension by collective agreement- 1 month/30 days
Reinstatement - when the employee gets back into work. if not termination.
Art. 24 - termination by law- automatic. Art. 25 - by agreement. Art 26ff - by initiation

of one the parties.
#Lawful termination and its effects
1. Art 39 entitlement of severance pay't(only from emplyer pocket) w/r as provident

fund&pension are contribution of both employer and employee). art 27 is not covered
under 39 so they are not entitled to severance pay't.
art 40/88 amount of SP
SP= 30/ADW + 1/3(30*ADW)Year of S-1 < or equal to 12*(30*ADW)
2. Additional payt -
.art 40(3)- 60*ADW
.art 41 - Compensation in addition to SP
.art 77(5) LP & 36/3 of CsP- only 2 years annual leave changed into money for
termination
.art 12(7) LP and 87 csp - Certificate/letter of service
# Unlawful termination and its effects 42ff
Any termination which fails to observe the substantive (valid reason/cause) or

procedural requirements of termination shall be held unlawful.(refer Arts.14(1)(c),23(1)
& 42 of LP.
# reinstatement(Arts.26(2)& 43(1)),
# compensation together with severance payment(Art.43(2),(3)(4) &39(1)(b)),

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# payment inleu of notice period(Art.44 & 45),
Dismissal done by employer. w/r as Resignation done by employee ( ordinary(31) or

Constructive).
# fine(Art.14(1)(c)&184(2)(c) are the remedies stipulated by law for unlawful

terminations.
- Art. 43(4)a - Full Compensation = 180*ADW( for indefinite Period, 6 months salary)
- Art 43 sub 4/b - for definite period
Effect of termination in both lawful and unlawful cases
- Service letter
- Pay't for unused annual leave
- Severance pay't for ground matter(39). No severance Pay't for termination by art 27
Chapter III- Special categories of Employees
Probationary employees
Art. 11ff of LP and Art. 21 ff of CSP
At the commencement of a contract of employment, the employer is entitled to set a

probationary period (i.e. trial period).
“whenever a person is dismissed for unfitness, it is sufficient that the employer honestly
believes on reasonable grounds that the person is unfit. It is not necessary for the
employer to prove that she is in fact incompetent.”
Under the Civil Service, probation period is mandatory& its length is specified by law
and hence it is not subject to contractual bargain. This does not seem the case under the
Labour Proclamation.
Apprentice

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48ff of LP
This is a situation through which the employeragreesto provide a person (i.e. the
apprentice) complete and systematic training and the apprentice in return agrees to obey
the instruction given to carry out the training. Strictly speaking, such an arrangement is
not an employment relationship. 2(2)b of CSP/515 has excluded.
# As per art 49 LP - apprentice is only for definite time.
- no severance payt, reinstatement, compensation for termination but there is injury

compensation(109(4)+110 LP
Young employees - between the age of 14 and 18.
The Civil Service Proclamation, in principle, prohibits civil service employment below
the age of majority.
Their differential treatment is manifested in the following terms of employment under

the labour law,
* As regards to length of working hours(max 7 hr) and its timing- Arts.91 (1) & 90
* As regards to types of work- 89 LP - prohibition of engagement of dangerous risky

or hazardous work
Female employees
the Ethiopian legal system appears to be on the right track. The FDRE constitution has
already incorporated both principles in its body of provisions.
Arts.13 & 41of the Federal Civil Service and Arts. 14, 87, 88 of the Labour
Proclamation

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Two angles, The first type of regulation is providing flat protection available to all
females by virtue of being female. The other type of regulation is providing special
provisions for females under particular circumstances such as pregnancy and maternity.
Employees with disability
FDREC stipulates,” The State shall, within available means, allocate resources to
provide rehabilitation and assistance to the physically and mentally disabled, Art.41
(5).
Proclamation No.568/2008 has also important provisions for persons with disability.
The principle of non discrimination on grounds of disability has also been expressly
inserted under the FCSP (Art.13 (1)). Though not as express as the FCSP, the LP
prohibits discrimination among employees “…on the basis of nationality, sex, religion,
political outlook or any other condition.”(Art.14 (1) (f)
The Disability Act of Ethiopia (2008) has also incorporated principles
Points by Mr. Yohanan Yokamo( Hawassa University) on Burden of proof
- Reverse Burden- disabled persons are not expected only to allege that they are
discriminated; to shift the burden to prove to the employer. The employer need to prove
that no discrimination was committed.
- Principle of reasonable accommodation/adjustment - the employer should provide

conducive environment for disabled persons(reasonable does not mean extra). Eg. Stair
conducive for disable person.
NonEthiopian employees
the Ethiopian legislature lays down conditions on the basis of which foreign nationals
may be employed in Ethiopia Art.174 LP & Art.15 & 22(2) FCSP.

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for a foreigner to be lawfully employed in Ethiopia, he/she needs to possess double
permits.(namely; Residence Permit & Work Permit) The Power to issue Residence
Permit is vested on the Security, Immigration and Refugee Affairs Authority; while
Work Permit is to be issued by the Ministry of Labour and Social Affairs.(Art.174 LP)
Under the Civil service employment regime, there is an express provision which
stipulates “a person who is not an Ethiopian national may not be eligible to be a civil
servant”. exceptions (Art.15 FSCP). It means in pple civil service is open only for
nationals. Foreiners are exceptionally employed as expert when there are no national
competent for that job.
Chapter IV- Legally stipulated minimum working conditions
Minimum Wage
Many jurisdictions have succeeded in prescribing minimum hourly/monthly wages to

employees working within their territory. Others leave this issue to the contracting
parties. The Ethiopian employment regime seems to adopt a hybrid of the two
approaches.
The civil service regime has prescribed a minimum monthly wage for those working in
the civil service;while the labour law regime has left the issue to the parties themselves.
Art 53ff of LP and 6 of CSP
It is believed that in a free market economy, price of goods and services is to be fixed
by taking into account the supply and the demand side of the item in a forum of bargain.
In kind payt, 0nly upto 30% possible(Ethiopian LP)
Employment security- is trying to protect the employee from unjustified dismissal. It

is cross - cutting guarantee, touch each & every right. Ensured by d/t mechanisms.
Author.Yohanan Y. point out some ES.

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- presumption in favor of indefinite period unless otherwise provided in ...
- presence of valid reasons for termination is required.
- Judicial verification is required. eg to check 'valid reason of employer'
Normal Working hours- we mean those periods in a day or in a week when the
employee regularly renders service to the benefit of his/her employer. 66ff of LP & 32
of CSP - 8 hrs in Eth.
48 hrs per week - LP/61
39 hrs per week - CSp/32
paid leaves - art 76 of Lp and 42 of CSp
annual leave - 79ff LP and 37 CSp
LP- Min 14 days and max - no limit
CSP- min 20 days and max 30 days
-sick leave- art 85LP/ art 42 Csp
- Special Leave - art 81-84 of LP and 43-45 of CSp
Safe and Healthy working conditions /- has 2 levels of measures or obln
1. Preventive measures
-is bilateral or mutual obln
Art. 92-112 of LP and Art 47-56 of CSP
2. Remedial measures - loss distribution
Employment Injury - art 97/98 of Lp & 47 of csp
Extent of employers liability

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- First aid 104 lp
-Medical benefits 105 lp & 53 csp
- Cash benefits 107 lp
# Art 110 of LP - death of employee and survivors benefits
-50% - surviving spouse
-10% - Children < 18 yrs
- 10% - Parents(each)
Chapter V: Collective Bargaining & Collective Agreement
ILO principles on the right to collective bargaining
The standards and principles emerging from the ILO’s Conventions,

Recommendations and other instruments on the right to collective bargaining, and
the principles set forth by the Committee of Experts and the Committee on Freedom
of Association on the basis of these instruments may be summarized as follows:
A. The right to collective bargaining is a fundamental right endorsed by the

members of the ILO in joining the organization, which they have an
obligation to respect, to promote and to realize, in good faith (ILO
Declaration on Fundamental principles and rights at work and its follow-up)
B. Collective bargaining is a right of employers and their organizations, on the
one hand, and organizations of workers, on the other hand (first-level trade
unions, federations and confederations); only in the absence of these latter

187
organizations may representatives of the workers concerned conclude
collective agreements.
C. The right to collective bargaining should be recognized throughout the
private and public sectors, and it is only the armed forces, the police and
public servants engaged in the administration of the state who may be
excluded from the exercise thereof (Convention No. 98).
D. The purpose of collective bargaining is the regulation of terms and
conditions of employment, in a broad sense, and the relations between the
parties.
E. Collective agreements should be binding. It must be possible to determine
terms and conditions of employment which are more favorable than those
established by law and preference must not be given to individual contracts
over collective agreements, except where more favorable provisions are
contained in individual contracts.
F. To be effective, the exercise of the right to collective bargaining requires that
workers’ organizations are independent and not “under the control of
employers or employers’ organizations” and that the process of collective
bargaining can proceed without undue interference by the authorities.
Proclamation 377/03
Art. 114 - Minimum Numbr - 10 workers
- Employers - 2 or more
art. 115/116 - role of trade unions/ emp't association
art. 124(2) and 128 - subject matter of Collecting bargaining
Chapter VI: Employment Dispute Settlement Mechanisms
The labour law and the Civil Service employment regimes follow different kinds of
dispute settlement machineries.

188
Labor Dispute Settlement process* art 136 Lp
the power to adjudicate over individual labour disputes are concurrently vested
both in the Federal Courts and the State Courts.
the Proclamation establishes in each First Instance Courts of the States (a) labor
division (s).78 Labour divisions are also established in the State Appellate Courts to
hear mostly appeals from decisions rendered by the First Instance Courts or by
the Ministry of Labor and Social Affairs or Bureau of Labor and Social Affairs.79
Ordinarily, labour disputes are either individual or collective. The labour proclamation
has employed an illustrative listings of what constitutes individual labour
dispute( without providing definition) and what constitutes a collective one (Arts.138
(1) &142(1) respectively)
The imp't consequence of distinguishing between Indvl ED & collective ED is to

know individual labour disputes are within the competence of the labour divisions of
the ordinary woreda court / First instance court while the collective ones are within the
power of the Labour Relation Boards/conciliation.
* As regards to composition, the Labour Divisions are to be operated by sitting judges

of the ordinary courts while the Boards are composed of representatives of the
employers’ and employees associations in addition to the appointees of the
government(i.e. tripartite arrangement).
* With respect to the working systems, the labour divisions are expected to conduct
business in accordance with the stipulations of the civil procedure in their judicial
proceedings. Winner- loser determination is the final outcome in such forum.
78
Art. 137
79
Art.139
189
Nevertheless, the Boards are expected to serve as more of negotiating forum rather than
an adjudicating one. It is only when amicable settlement is not attained that the Boards
will resort to judicial settlement.
* Decisions of the labour divisions are appealable to the upper floor in the judicial
hierarchy and the decision of the appellate division is final irrespective of whether the
appellate division affirms or reverses the decision of the lower court.
With the same token, decisions of the Boards are appealable, on issues of law only, to
the Federal High Court and the decision of this court is held final regardless of whether
is agrees or disagrees with the Board’s position (but still there is cassation division for
review)
PERMANENT AND AD HOC LABOR RELATIONS BOARD- Once the

Conciliation proceedings fail to bring forth a negotiated settlement, Art. 142(3) comes.
Firstly, the power to conciliate and decide over all collective labor disputes, except
those on matters of wages and other benefits arising in the EPSU, is vested in the
Permanent Labor Relations Board
Secondly, the power to decide over collective labor disputes arising particularly out of
wages and other benefits in the EPSU is vested in the Ad Hoc LRB. like air port, in art.
136(2) lp
THE PLACE OF ARBITRATION UNDER THE LABOUR PROCLAMATION
Art.143 of LP - nowhere is the word ‘arbitration’ or ‘arbitrator’ alluded to but in this

Provision!!
paragraph (1) of the Provision could be briefly put as enabling disputing parties to agree
to submit their case to arbitrators for settlement in accordance with the appropriate law,
either by inserting it in the main contract, i.e., arbitral clause (probably in the collective
agreement) or concluding it as a separate agreement, i.e., arbitration submission.
190
Dispute settlement mechanism under the Civil Service employment regime - as
there is no legal framework enabling civil servants to form associations of their own,
collective employment dispute under the civil service is unthinkable.
For this the Civil Service Proclamation has laid down mechanisms for grievance
handling - art.72 - 74 csp
# the internal structure of every civil service office.80 Accordingly, every government of
is expected to establish a “Grievance Handling Committee”
“Disciplinary Committees” are also expected to be established in view of investigating

alleged misdeeds committed by civil servants and recommend proportional measure to
the head of the government office concerned.
# the external structure, , civil servants are entitled to lodge appeals from the decisions
of the government organs to Administrative Tribunals (quasi judicial) (Art 74)
Period of limitation Art 162ff of Lp after one year and ,71 of csp within 6 months
Priority of claims - Art.167 Lp -employees are privileged creditors(by law)
Industrial Action- This action may take either of the two forms namely; strike or lock
out. When the action is taken by the employees, it will be a strike
while the measure will be lock-out where it is exercised by the employer.
In both cases the measure is a sort of self help action where the aggrieved party takes
its own action in view to compelling the other party to accept its terms.
80
Art.72 of Proc. No.515/2007
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9 PUBLIC INTERNATIONAL LAWS
CHAPTER 1: INTRODUCTION
public international law is the law that applies to international actions, whether
committed by States, international organizations, or even individuals.
International laws are not written down in one book like the Civil Code of Ethiopia.
There is no international government that has authority to pass such laws.
The domestic laws of Ethiopia – including the FDRE Constitution – are, for the most
part, not relevant in deciding Ethiopia’s international obligations in disputes before
international tribunals.
the domestic laws of Ethiopia are extremely important in determining how international
laws will apply in the domestic courts of Ethiopia. Domestic courts often refer to
treaties (and international customs) when deciding disputes between the individual
litigants before them.
CHAPTER 2: THE STATE SYSTEM
The stability of the State System rests on the stability of States, and for this reason
international law places a great deal of emphasis on a State’s continued legal existence
and relative permanence of its borders.
The State system came into being with the birth of the so-called “nation-state” in
Europe in the 16th and 17th centuries.
The modern international system is still a “State System,” composed of States, but
many new actors now play a role in international relations. Principal among these new
actors are international organizations like the United Nations and the WTO.
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State Sovereignty
Part A: Definition of Sovereignty and History
A State’s sovereignty is its independence. The word “sovereign” implies some ultimate
authority, a master with no master above him, a free and autonomous entity.
-State must speak with one voice at the international level
- other States should not concern themselves with certain internal matters of a sovereign
State like the type of government a State adopts – whether monarchial, tyrannical,
democratic, socialist, or otherwise – or the State’s religion or the way a State treats its
citizens.
State sovereignty and the modern nation-state really came into being in 1648 with the
Treaty of Westphalia that ended the 30 Years War in Europe. The War arose in part out
of tensions between Catholics and Protestants and fears of civil strife between these two
religious groups.
The Treaty of Westphalia resolved religious tensions by giving each State the power to
determine religious affairs within its own territory (birth of the modern secular state.)
Part B: Erosion of State Sovereignty
eroded by international laws and international bodies; that such laws and such bodies
tend to restrain the activities of States from the outside, WTO, ILO
Part C: Theories of State Behavior
(1) interest-based theories (states act rationally to maximize their interests.) including
realism, institutionalism, and liberal theory; and
(2) norm-based theories including constructivism and legal process theories.
*Realism’s core assumptions can be variously classified

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(1) states are key actors in world politics;
(2) states can be treated as homogeneous units acting on the basis of self-interest;
(3) analysis can proceed on the basis of the assumption that states act as if they were
rational; and
(4) international anarchy – the absence of any legitimate authority in the international
system – means that conflict between self-interested states entails the danger of war and
the possibility of coercion…
* institutionalism- institutions could enable states to achieve their own objectives more
efficiently. Institutions would alter state strategies by changing the costs of
alternatives; institutionalization could thus promote cooperation.
institutions mattered because they could provide information, monitor compliance,

increase iterations, facilitate issue linkages, define cheating, and offer salient solutions.
* Constructivism- seek to show that the preferences of individuals, and therefore state
interests, can be influenced by international law and institutions.
State Formation and the Self-Determination of Peoples
Part A: Legal and Political Issues of Statehood
The 1933 Convention on the Rights and Duties of States (known as the Montevideo
Convention), sets out four simple criteria for statehood.
a)permanent population - no minimum number of inhabitants necessary to make a

State.
b) a defined territory- even though its borders are disputed LIKE Israel.
c) government;
d) capacity to enter into relations with the other states.

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Increasingly, States and international organizations like the European Union and the
United Nations are making express demands that must be met by new States before
these States will be recognized. EG. promises by the new States to support human
rights, prevent nuclear arms proliferation, etc.
Part B: The Right of Self-Determination
This principle was articulated first as a right of colonized people to self-government,

but it has since been used to justify the creation of States in other ways, as by secession.
The right of self-determination was affirmed as an international law when it was written
into the Charter of the United Nations in 1945.
Nowhere does the Charter specifically call for freedom for colonized territories. Apart
from the undefined “right of self-determination,” the UN Charter in Article 73 laid out
some specific duties of colonizing countries, “to promote to the utmost… the well-
being of the inhabitants of these [colonial] territories, and, to this end… to develop self-
government, to take due account of the political aspirations of the peoples, and to assist
them in the progressive development of their free political institutions…” These are
ideal goals for political freedom, not specific requirements that can be measured.
Most of the international HRs instruments that include the right of self-determination
gloss over its various contradictions and leave its definition vague.
Again, the right is not clearly defined in z ACHPR.
Two very important General Assembly resolutions make reference to the right of
peoples to self-determination. The first, passed in 1960, is the Declaration on the
Granting of Independence to Colonial Countries and Peoples.
The second resolution, passed in 1970, is the Declaration on Principles of International

Law Concerning Friendly Relations and Co-operation Among States in Accordance
with the Charter of the United Nations.
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This resolution seems to reinstate the tension between self-determination and territorial
integrity. a State that does not comply with the principle of equal rights and self-
determination (presumably a State that denies certain political rights to minorities) has
forfeited its right to territorial integrity. Z Canadian supreme Court over Quebec.
Unlike the international instruments, Ethiopia’s Constitution is quite clear about what
the right of self-determination means, who the “people” are who can claim this right,
and how this right can be lawfully exercised art 39.
Z Constitution uses a mixture of subjective and objective criteria to define the

beneficiaries.
Part C: State Territory and Borders
Africa have been decided by the principle of uti possidetis, ita possidetis (or just uti
possidetis for short), a Latin phrase which means literally, “[you may] keep what you
had.”
By this is meant that former colonies, on gaining independence, will keep the borders
established previously by the colonizing power.
The principle of uti possidetis seems to have been first invoked and applied in Spanish
America, inasmuch as this was the continent which first witnessed the phenomenon of
decolonization involving the formation of a number of sovereign States on territory
formerly belonging to a single…State.
(1) identify the issue, (2) state the rule, (3) apply the rule to the facts, and (4) give a
brief conclusion. This is the so-called “IRAC” method.
Recognition of Governments

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As an expression of disapproval, other governments may refuse to recognize the
government, cut off diplomatic contacts, suspend travel to that country, or cut off trade
and foreign aid.
The issue of recognition is separate from the issue of whether to continue diplomatic
relations, travel, and trade.
- “Tobar Doctrine”The U.S. for some time applied this doctrine which said that, in
order to promote democratic transfers of power, new governments formed by use of
force or subversion of legitimate democracies would not be recognized.
- Estrada Doctrine(Joseph Estrada theory) (Mexican foreign minister), there are

situations when the international community must determine the legitimacy of a new
government. What is imp't in this theory 1st to recognize state, not gov't. once state is
recognized, then no need to recognize the gov't.
Chapter 3:
International Organizations and Other International Actors
an international organization is an organization, typically established by treaty, whose

members are States or other international organizations.
The prototypical international organization is the United Nations. The UN has both
more power and less power than the student might expect. regional organizations OAS,
AU,EU
International Civil Aviation Organization. WTO, IMF, WB, WHO & the International
Telecommunication Union.
Characteristics of International Organizations
- have attained a special status in international law that other organizations like NGOs
do not have.

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-Like States, international organizations can enter into treaties, enjoy certain privileges
and immunities, as for example those enjoyed by UN diplomats traveling abroad on UN
business.
- States have privileges and immunities that are general whereas international
organizations have only such privileges and immunities as are necessary to carry out the
organization’s functions.
- An international organization cannot invoke “sovereign immunity” – immunity from

liability in foreign courts in cases involving official acts – because an international
organization is not a sovereign. Also, only States can appear before the International
Court of Justice in contentious cases.
*Personality of IO/ Elements to be considered - ICJ advisory opinion 1949 on Count

Bernadotee Assassination.
- Existence of organization like executive, jud, leg

- privilege and immunities
- treaty making
- property owning power
The Structure of the United Nations
The General Assembly (GA) is the Parliament of the UN, but it is a Parliament with
little or no legislative power. GA is plenary body. GA resolutions are like
recommendations to Member States – the resolutions are not binding.
The Security Council (SC), compared to the GA, has more power, but it is exercised
within a narrower scope. In fact, the SC passes both non-binding resolutions and
binding resolutions. The binding resolutions may be passed only when the SC is taking

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action “for the maintenance of international peace and security.” (15 members – 5
permanent members and 10 rotating members with 2-year terms)
The Secretariat is composed of all the administrative staff of the UN and headed by the
Secretary-General. the role of the Secretary-General as a spokesman.
The International Court of Justice functions under its own statute which is “an integral
part” of the Charter and is annexed to it , has fifteen judges all from different States.
Two types of cases come before the Court – contentious cases between States and
requests for advisory opinions from organs of the UN or from specialized agencies.
ECOSOC functions like a mini GA with a special focus on economic, social, and
humanitarian issues. makes studies and reports and may bring matters to the attention of
the GA.
The Trusteeship Council was created to monitor those colonies placed under the
administrative authority of another State following World War II. today it is out of
going..
* The UN has many problems in practice – most significantly the problem of preventing
aggression and war by States – but the major structural problems are two. First, there
is some confusion as to the respective areas of authority of the SC and the GA. Second,
there is some question as to whether the ICJ can review the activities of the SC and GA
and pass judgment on them.
The African Union
May 26, 2001, marked the Constitutive Act of the African Union entered into force.
The organs and institutions of AUare;
(1) the Assembly of the Union;
(2) the Executive Council;

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(3) the Pan-African Parliament;
(4) the Court of Justice;
(5) the Commission;
(6) the Permanent Representatives Committee;
(7) the specialized technical committees;
(8) the Economic, Social and Cultural Council; and
(9) the financial institutions (African Central Bank, the African Monetary Fund, and
the African Investment Bank)
* Although the organs and institutions forming its structure are provided for by the Act
and offer great potential for the continent, their composition, powers, functions,
organization, and rules of procedure have yet to be specified.
* the current state of the African economy is poor.
Other International Actors: NGOs, Corporations, and Individuals
NGOs, corporations, sporting federations, organized religions, regional governments,

and international terrorists like ISIS. These non-state actors do not have the status of
legal persons at the international level, so they cannot have rights and duties under
international law. their activities are governed by national laws.
Three new areas of international law give greater standing to individuals in the
international arena – human rights law, international humanitarian law (law of war),
and international criminal law.
CHAPTER 4:
INTERNATIONAL CUSTOMARY LAW
Custom is losing its status as a strong source of authority in international law. At least it
is agreed now that treaties are a stronger source of international law than custom and
take precedence over custom.

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What is strange about this position, however, is that it is international custom that
provides the basis for all treaty law, not the other way around. The principle pacta sunt
servanda– that a State must abide by its treaty obligations – is an international custom.
From the principle of sovereignty to the treatment of foreign emissaries, the

international system is founded on customs.
English and American courts had long consulted treatises on international law as well as
the practices of states.
Background Principles and the Hierarchy of Sources in International Law
International law is made chiefly in one of two ways: through agreements between
states – ‘treaties’ – or through practice by states that fulfills certain requirements –
‘customary international law.
the ICJ statute contains a clear list of the sources of international law.Art 38(1) of ICJ
statute-
1st International conventions - international custom, the general principles of law

recognized by civilized nations (eg. good faith), judicial decisions and the teachings
of the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
*In z principle of order of importance, conventions (treaties) will take precedence

over custom, and custom will take precedence over general principles of civilized
nations. .
*Treaties tend to be more specific and clearer than customs, and certainly treaties are a
better expression of the consent of States.
* treaty provisions may be interpreted according to rules of international custom
*In the Lotus principle- States have residual sovereignty or power in the absence of
international law.

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*Decision ex aequo et bono - states can apply to ICJ that not to be based on Int'l law
while determing the case. They just can prefer justice, fairness as basis of determination
for their case without Int'l law.
* Art. 59 of ICJ Statute - ICJ decisions lack precedence, has only persuasive role
Chapter - 4
Customary Law: State Practice and Opinio Juris
it is hard to prove that a custom exists. So two elements must be proven – State
practice and opinio juris. (elements of custom).
“State Practice” indicates the State’s overtbehavior(official act). It is repeated and

consistent act.Eg. Internal or external action or inaction(silence w/c in principle amount
acceptance)
whereas opinio juris(“subjective” element) means the State’s belief that the practice is
legallyrequired as a matter of international law.
Opinio juris concerns statements of belief rather than actual beliefs. treaties and
declarations represent opinio juris because they are statements about the legality of
action, rather than examples of that action.
Opinio Juris is like a State’s official stamp that converts that State’s casual practice into
a binding rule.To have custom, States must not only exhibit a certain practice; they
must also believe that the practice is legally required.
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Which States Are Bound by Custom?- If a custom is general, all States in the world
are bound by it. If a custom is regional or local, only States in that region or locality
will be bound by it.
States that say and do nothing during the time when a custom is developing will be
bound by that custom. The same applies to new States.
The only way that a State can get out of a general custom is by objecting to that custom
loudly and continuously during the process of the formation of the custom. A State that
does this may obtain “persistent objector status.”- the State must object when the
custom is in the process of forming & the objection must be clear and “persistent.”
After a rule of custom has formed, any conduct contrary to the rule is a violation of
international law.
Treaties and General Assembly Resolutions as Evidence of Customs
Customary law co-exists with treaty law. First, the treaty may restate an already
existing international custom. Second, the treaty may crystallize an emerging
international custom. That is, the treaty may be the final recognition of a custom that
was previously just in the development stages.
A treaty may be used as evidence of custom along with other things like domestic court
decisions and policy documents. the treaty may be the only evidence of the custom.
GA resolutions represent the opinion of a majority of States in the world. GA

resolutions can be used as evidence of State practice or opinio juris for the purposes of
establishing custom. However, Unlike treaties, General Assembly resolutions are not
binding on States.
GA resolutions have been useful for proving that certain human rights standards have
become international custom.
- Jus Cogens or Preemptory norms/laws are higher norms of custom
CHAPTER 5:
International Law of Treaties

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States may enter into contracts, commercial or otherwise, that are governed by the
national laws of one of the States involved. A treaty is an agreement governed by
international law.
treaties are entered into by States, but international organizations have the capacity to
enter into treaties as well.
functions- Some treaties are like international “legislation” – they are open for all
States to join and are intended to be universal and binding on all. Their purpose is to
establish a set of universal rules to govern State conduct.
Other treaties are more like “contracts.” These treaties are the means by which two or
more States transact business
Treaties serves as constitutions for international organizations
Laws-* the customary law “pacta sunt servanda” meaning that treaty promises must be
kept.
* there is a “treaty on treaties” or in other words a treaty that many States have joined
that provides rules for the interpretation and application of treaties. This is the 1969
Vienna Convention on the Law of Treaties (VCLT) (applies to written treaties entered
into between States.)
*Even though Domestic laws are important in domestic courts, not in international
courts, treaties are binding as law at two levels, the domestic level as well as the
international level.
-In domestic courts, domestic laws will color the interpretation and application of
treaties. FDREC Art 9
# Treaty Formation
-negotiations over a potential treaty begin when representatives from the State parties
meet.
- the State parties must express their consent to be bound by the treaty, may be
expressed by signature, exchange of instruments constituting a treaty, ratification,
acceptance, approval or accession, or by any other means if so agreed

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- For multilateral treaties, it would be impractical to require all negotiating parties to
consent before the treaty entered into force. Therefore, multilateral treaties usually
provide that the treaty will enter into force upon the consent of a certain number of the
parties.
* A party not present at the original negotiation may be allowed to join the treaty at a
later time if the treaty so provides. This is called “accession.”
Interpretation of Treaty Terms
The ultimate goal of a court in interpreting treaty terms is to fulfill the intentions of the
parties to the treaty. A court is not there to make the deal fair when a treaty seems
unfair.
two basic theories
1) the objective approach, requires that we take the parties at their word and
interpret treaty terms according to their ordinary meaning and as an ordinary
person would understand them.
2) the subjective approach- It is possible that the parties to the treaty had some
special understanding as to the meaning of terms that is not found in a dictionary.
Thus, a court should look at anything that might indicate what the parties were
thinking – their behavior, letters, and the drafting history of the treaty.
3) The approach of the VCLT (Veina Convention on Law and Treaties) –is a
combination of the objective and subjective approaches- A treaty shall be
interpreted in good faith in accordance with the ordinary meaning to be given to
the terms of the treaty in their context and in the light of its object and purpose.
* The VCLT has rather specific rules in regard to the use of drafting history in treaty
interpretation.
*Additional Aid - Travoux preparatories - preparatory works/circumstances before,

during and after conclusion
Invalidity of Treaties and Treaty Termination
a State cannot unilaterally terminate a treaty and simply pay damages for the unlawful
breach. The treaty will continue in force even after payment of damages by the
breaching party, unless of course the non-breaching party opts to terminate the treaty

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In the absence of agreement among the parties as to termination, the default rule is that
termination is possible only in four situations of termination of treaties.
(1) material breach by the other party either bilateral or multilateral,
(2) impossibility of performance,Conclusion of letter of treaty
(3) fundamental change of circumstances(rebus sis stantibus) such that it no longer

makes sense to continue with the treaty (eg.) a new rule of jus cogens that emerges
some time after the treaty is already in force and that conflicts with the treaty.
(4)- Severance of diplomatic relations. eg. Eth vs. Eritrea
Treaty Reservations
It is a unilateral statement whereby a nation tries to exclude or modify the legal effect of
a provision of a treaty while still joining the treaty. A State may want to ratify a treaty,
but it disagrees with one provision in the treaty.
Reservations must be distinguished from “understandings” and “declarations.” Unlike

reservations, understandings and declarations are interpretive statements that are not
meant to change the treaty terms but rather clarify what that party understands the treaty
to mean.
CHAPTER6:
State Responsibility
Meaning of Sate Responsibility
Until recently, the theory of the law of state responsibility was not well developed. The
position has now changed, however it does not replace customary international law,
with the adoption of the Draft Articles on the Responsibility of States for

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Internationally Wrongful Acts ("Draft Articles") by the International Law
Commission (ILC) in August 2001.
State responsibility is a fundamental principle of international law and it lies on the

understanding that states are sovereign and equal. It provides that whenever one state
commits an internationally unlawful act against another state, international
responsibility is established between the two.
The nature of State Responsibility (characteristics or requirements)
 the existence of an international legal obligation in force as between two

particular states;
 there has occurred an act or omission which violates that obligation and which is
imputable to the state responsible; and
 loss or damage has resulted from the unlawful or omission.
The Question of Wrongfulness

*The principle of objective responsibility ( ‘risk’ theory) maintains that the liability of
the state is strict. Once an unlawful act has taken place, which has caused injury and
which has been committed by an agent of the state, that state will be responsible in
international law to the state suffering the damage irrespective of good or bad
faith( intention or negligence).
*the subjective responsibility concept (the ‘fault’ theory) which emphasizes that an
element of intentional or negligent conduct on the part of the person concerned is
necessary before his state can be rendered liable for any injury caused.
Imputability (mamekagne OR malakek)/Attribution- is the legal fiction which

assimilates the actions or omissions of state officials to the state itself and which
renders the state liable for damage resulting to the property or person of an alien. it is
objective responsibility.
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Ultra vires acts-The act of officials of a state may result in the responsibility of a state
even when the former have acted beyond their authority.
Although private individuals are not regarded as state officials so that the state is not
liable for their acts, the state may be responsible for failing to exercise the control
necessary to prevent such acts.
State Control and Responsibility- if z person or group of persons is in fact acting on z

instructions of, or under z direction or control of that State in carrying out z conduct, z
state is liable.
Where a state subsequently acknowledges and adopts conduct as its own, then it will be
considered as an act of state under international law entailing responsibility, even
though such conduct was not attributable to the state before hand.
Consequences of Breach and Reparation
The breach of an international obligation entails two types of legal consequences.

Firstly, it creates new obligations for the breaching state, principally, duties of
cessation(primary demand)and non-repetition and a duty to make full
reparation(compensation), Restitution(in kind like returning ships)and formal Apology
Second, create new rights for injured states, principally, the right to invoke
responsibility and a limited right to take countermeasures.
* If illegal actions are continuing, the state has a duty to cease. The state also has duties
to make reparation, which could involve restitution, compensation, or satisfaction.
CHAPTER 7: War and the Prohibition on the Threat or Use of Force
History of use of force: from the ‘Just War’ to the United Nations
Christianization of the Roman Empire and the ensuring abandonment by Christians of

pacifism (war is a mistake, any disagreement must avoid wiz consensus) give rise to the

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doctrine of just war. In those days the doctrine was force could be used provided it
complied with the Divine Will.
But with positive and the definitive establishment of the European balance of power
system after the peace of Westphalia, 1648, the concept of the just war (just cause or
sovereign authorization)disappeared from international law as such. State were
sovereign and equal, and therefore no one state could presume to judge whether
another’s cause was just or not. Peaceful solution for all conflict and no judg't passing
The First World War marked the end of the balance of power system and raised afresh
the question of unjust war.
The League system did not, it should be noted, prohibit war or the use of force, but it
did set up a procedure designed to restrict it to tolerable levels.
Z UN charter’s Article 2 provision is regarded now as a principle of customary

international law and as such is binding upon all states in the world community. The
reference to ‘force’ rather than war is beneficial and thus covers situations in which
violence is employed which fall short of the technical requirements of the state of war.
The Phrase ‘Against the territorial integrity or political independenceof any state’
No state has the right to intervene, directly or indirectly, for any reason what so ever, in
the internal or external affairs of any other state. Consequently, armed intervention and
all other forms of interference or attempted threats against the personality of the state or
against its political economic and cultural elements, are condemned.
Categories of Force/ 0r (Exceptions to use of Force)
-Retorsion- be nidet memeles- is the adoption by one state of an unfriendly and harmful
act, which is lawful, as a method of retaliation against the injurious legal activities of
another state. legitimate method of showing displeasure.
severance of diplomatic relations and the expulsion or restrictive control of aliens, as

well as various economic and travel restrictions.

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-Reprisals are acts which are in themselves illegal and have been adopted by one state
in retaliation for the commission of an earlier illegal act by another state.
- self-defense - There is extensive controversy as to the precise extent of the right of

self-defense in light of Article 51. On the one hand, it is argued that article 51 in
conjunction with article 2(4) now specifies the scope and limitations of the doctrine of
use of force. self-defense can only be resorted to ‘if an armed attack occurs’ and in no
other circumstances.
On the other hand, there are writers who maintain that the opening phrase in Article 51
specifying that ‘nothing in the present Charter shall impair the inherent right of…self –
defense’ means that there does exist in customary international law a right of self-
defense over and above the specific provisions of article 51, which refer only to the
situation where an armed attack has occurred.
The concepts of necessity and proportionality are at the heart of self-defense in

international law.
Necessity - the armed attack that has occurred or is reasonably believed to be imminent
requires the response that is proposed.
Proportionality may also require consideration of the type of weaponry to be used, an

investigation that necessitates an analysis of the principles of international humanitarian
law.
Terrorism- is the systematic use of terror especially as a means of coercion. Most

common definitions of terrorism include only those acts which are intended to create
fear (terror), are perpetrated for an ideological goal (as opposed to a lone attack), and
deliberately target or disregard the safety of non-combatants.
Most government definitions outline the following key criteria: target, objective,
motive, perpetrator, and legitimacy or legality of the act.

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Collective Security- as an Approach to Peace", is seen as a compromise between the
concept of world government and a nation-state.
- First: almost every state, especially all major states, has to be in the collective security
arrangement and committed to it for it to work.
- Second: no one state can block the decision making process.
- Third: for sanctions to work, the international economy has to be sufficiently

interdependent such that sanctions harm the intended country enough, but do not harm
the countries doing the sanctioning.
- fourth for countries to trust collective security, they have to know it works well
enough to safeguard their security.
The lines between what is considered "collective defense" and "collective security"
have been blurred. "collective security" - avoid grouping powers into opposing camps,
and refusing to draw dividing lines that would leave anyone out. (UN Principle)
Humanitarian Intervention- *When and Where to Intervene?
-where the scale of death and suffering is greatest,
-where intervention is unlikely to create great-power conflicts, and
-where a mission can be designed that promises many lives saved at low cost to
intervening soldiers.
*How to Intervene?
Should it simply do enough to feed starving people, should it create safe havens for
individuals or groups at risk, should it impose a ceasefire line between warring parties
—or might it even help one side to win a conflict? It all depends.
* Who Should Intervene?
The United States and other western countries can do a great deal to help in this regard
by providing modest sums—perhaps a couple hundred million dollars a year in all—for
improved training, equipment, and other basic military needs.
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CHPATER 8: International Dispute Resolution
International disputes are solved in two general methods: in the first category lie the
International Court of Justice/ICJ and Other International Tribunals and in the second
category are Arbitration, Negotiation, and Mediation-diplomatic means of dispute
resolution mechanisms.
The International Court of Justice/ICJ/

has a dual jurisdiction: it decides, in accordance with international law, disputes of a
legal nature that are submitted to it by States (jurisdiction in contentious cases) binding
rulings
it gives advisory opinions on legal questions at the request of the organs of the United
Nations or specialized agencies authorized to make such a request (advisory
jurisdiction).
The jurisdiction of the Court in contentious proceedings is based on the consent of the
States/special acceptance to which it is open is needed. No compulsory jurdn.The form
in which this consent is expressed determines the manner in which a case may be
brought before the Court.
Although without binding effect, the advisory opinions of the Court nevertheless carry
great legal weight and moral authority.
The ICJ and the Security Council
In practice, the Court's powers have been limited by the unwillingness of the losing
party to abide by the Court's ruling, and by the Security Council's unwillingness to
enforce consequences. However, in theory, "so far as the parties to the case are
concerned, a judgment of the Court is binding, final and without appeal,"
Other International Tribunals

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

war crimes tribunals offer citizens and leaders the opportunity to put their faith in an
equitable rule of law.
criticism
-men like Hitler and Pol Pot, the leaders of violent movements, are never judged by
tribunals for what they do. A war crimes tribunal that tries only middle ranking officers,
soldiers, and politicians is not as effective as one that tries the mastermind behind the
crimes.
-they do not alleviate the underlying causes of the conflict.
-they are ineffective in transforming a fractured society into one of stability and peace
(necessarily demonize individuals and sometimes whole groups, further separating
parties, instead of building peace.)
-they offer only the victors justice. What was most obviously missing following World
War II was not Hitler at Nuremberg, but a trial for Americans, French, British, and

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Russian individuals who committed acts that would have been considered war crimes
had the Allies lost the war. (Hiroshima)
The Creation of an International Criminal Court
officially established on July 1, 2002, and is located in The Hague, The Netherlands.
However, all of the world's nations have not ratified the Rome Statute of the I.C.C
(United States, Russia, and Japan)
only war crimes committed after the I.C.C.'s establishment can fall under its
jurisdiction. only those nations that ratify the document will fall under its jurisdiction.
the establishment of the Court is a significant step toward the creation of an

international system of war crimes justice.
CHAPTER 9: National Courts and International Law Issues
Monism - This theory characterizes international and municipal law as a single legal
system with municipal law subordinate to international law.
In states adopting this theory, the local courts automatically accept jurisdiction to
adjudicate on lawsuits relying on international law principles.
Dualism - This theory regards international and municipal law as separate systems so
that the municipal courts can only apply international law either when it has been
incorporated into municipal law or when the courts incorporate international law on
their own motion.
Customs and Treaties as Part of the Law of Ethiopia- Art 9(1) vs Art 13 (2) of
FDREC.
Extradition Treaties/Agreements
There are two types of extradition treaties: list and dualcriminality treaties. The most
common and traditional is the list treaty, which contains a list of crimes for which a
suspect will be extradited (surrendered).
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Dual criminality treaties, used since the 1980s, generally allow for extradition of a
criminal suspect if the punishment is more than one year imprisonment in both
countries.
Many countries, such as Mexico, Canada and most European nations, will not allow
extradition if the death penalty may be imposed on the suspect unless they are assured
that the death sentence will not subsequently be passed or carried out.
Some countries, such as France, Russian Federation, Germany, Austria, China and
Japan, have laws that forbid extraditing their respective citizens.
The refusal of a country to extradite suspects or criminals to another may lead to

international relations being strained. Often, the country to which extradition is refused
will accuse the other country of refusing extradition.

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1. Constitutional Law I 3 Cr.

Short notes of (Hawassa University) /Collection of Public Law)

Basic Conceptual Framework

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Tricameralism is the practice of having three legislative or parliamentary chambers. It

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

 The other chamber, i.e., the House of Federation which is composed of

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

 This system, therefore, is preferable for countries with an infant democracy as it

 In presidential system, all executive power is vested in the president. In

Short notes of (Hawassa University) /Collection of Public Law)

5.2. Electoral systems

 Members of the upper chamber- the senate were handpicked/appointed by the

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

1.1 The Classical Gada System

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

The second category of arrangement involves power sharing through consociations;

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Short notes of (Hawassa University) /Collection of Public Law)

Chapter One: Introduction to Human Rights Law

Nature and Definition of Human Rights- theybelong to an individual as a

Human rights differ from other rights in two respects.

Short notes of (Hawassa University) /Collection of Public Law)

1)The Universal System: The UN System

Reservations and Declarations

A state may, when signing, ratifying, accepting, approving or acceding to a treaty,

Short notes of (Hawassa University) /Collection of Public Law)

Restrictions and Derogations

*Institutions and Procedures

Short notes of (Hawassa University) /Collection of Public Law)

Chapter three: Systems of Protection for Vulnerable Groups