Oromia State University

School of Law

Course- Constitutional Law

By: Solomon Dessalegn Dibaba (LL.B, LL.M)

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 Chapter One
Basic Conceptual Framework

State as a Political and Juridical Concept

 States may be linked together in various ways. This linkage may create one single
international entity or, despite the linkage, the linked entities may still remain to be
recognized as separate i.e. be considered as subjects of International Law.
 Typical points in this respect are unions/leagues and confederations. In all of them, the
components maintain their international status of statehood.
 Thus, under International Law, confederations are separate entities.
 In federation the incidence of linkage is intense (and pervasive) when compared to
confederation. On the other hand, the organ of power created to manage a union or
confederation has no authority on the individual citizen of constituent/member states.

 In federation, the federal state has, in some aspect, authority over the individual on top,
along or besides the government of the member state and, as such, a federal state is
endowed with a legal personality in the eyes of International Law.
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 Cont….

State as a Juristic Person

 From the point of Political Science, the concept of state comprises four fundamental elements.
These are community of people, With a definite territory, sovereignty of the state and political
power.

 State, in Political Science, is a quality attached to a community of people(s) inhabiting a definite

territory, under a political authority; i.e. a body politic.

 Sovereignty: The capacity to monopolies on the use of force (state power) over a given political
community within a given territory is known as sovereignty.

 Forms of Sovereignty in International Law

a. Internal or Territorial Sovereignty: “Exclusive competence” or “domestic jurisdiction” and

the monopoly of power over its territory and nationals. sovereignty, in regard to a portion of the
globe, is the right to exercise therein the functions of state, to the exclusion of any other state i.e.
territorial sovereignty involves the exclusive right to display the activities of state.
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 Cont….

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.

 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 juridical equal, in the sense that, formally they have identical
rights at the international level.

d. 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.

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 Cont…

 In this way, the European states could directly protect the lives and properties of their nationals
abroad.

e. 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.

 From this principle some important state rights arise, including the right to regulate entry and
operations of foreign investors and the right of the state to pursue its own social-economic and
environmental policies.

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. It is not for International Law but for the Domestic Law
of each state to determine how one is given the status.

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 Cont…

 While it is for each state (state – as understood in international law) to determine under its own law who
are its nationals; such a law can only be recognized by other jurisdictions only in so far as it is consistent
with international conventions, customs and to the principles of law generally recognized with regard to
nationality.
Democracy and Constitutionalism
 Democratic theory is based on a notion of human dignity; dignity taking the central and highest value
worthy of respect.
 What constitutionalism insists on is having limited government. Predictability of governmental actions is
also a characteristic feature of its typology.
 A Constitution as a Charter for Governments; as a guardian of fundamental rights; as covenant, symbol,
and aspiration; and serve as a binding statement of people’s aspirations for themselves as a nation.
 Constitutional Democracy mix of constitutionalism and democratic theory. provided for a wide measure
of political participation and simultaneously restricted the peoples’ over-governance by putting in place a
variety of institutional means.

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 Cont…

 Each of them, again, has distributed the power to the Legislative, Executive, .. and adjudicate
among the three departments of government; everyone of them has a version of bi
cameralism and includes a Bill of Rights.

Rule of Law : Principle of modern constitutions, of law stand out as the most comprehensive and vital
doctrine, principle and/or concept.

 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.

4. Law must avoid contradictions. (intelligibility)

5. Law must not command the impossible. (Non self-contradictoriness)

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 Cont…

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)
Important Components of Rule of Law Reforms
 Court Reforms: The efficiency of the courts is an important component in rule of law reforms as the
existence of a judiciary is a fundamental aspect of downfall of law.
 To increase independence of the courts, the government can provide them with funding that will allow
them to make there own financial and administrative decisions.
Sustainable Development, Good Governance and Constitutional Order
 Constitutional Order should help address the State’s Constitution and the existing social reality.
 Sustainable development requires an interaction between government and its people; for that matter, it
requires a sufficient degree of clarification and identification of the civic and interest group leaders and
active promoters, service providers of the private and governmental civil services, representatives, the
elite and the polity.
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 Cont…

 Developing societies usually lack properly structured social organization just as they suffer from
weak statehood. Under structured means that there is a gap of communication and interaction between
government and people, due to, among other things, lack of sufficiently developed meditational
organization i.e. a properly organized civil populace.

Good Governance as an Element of Sustainable Development

 Governance means the management of the relations between government and its populace within a given
constitutional order.

 Bad governance mean denial of political and civil as well as economic, social and cultural rights,
administrative inefficiency and corruption, to deficient legal protection and political repression, and
ultimately to mass violations of human rights and tyranny. It entails waste of human power and natural
resources; it leads to environmental degradation and prevents sustainable development.

 Good governance is called for to de-legitimize and to overcome governmental and administrative
malpractices and non-democratic structures withstanding the realization of sustainable development.

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 Cont…

 In substantive terms, ensuring good governance requires that the working of the political
system is made transparent, that the political leaders are held publicly accountable, that
fairness and equality before the law prevail and that access to and distribution of assets,
mainly land, are regulated in an equitable manner.

 In operational terms the realization of good governance requires that key sectors of society and
the people participate, as much as possible in cooperation with the government, in shaping
governance.

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 Chapter Two
Creating Paradigm of State
Development of State in the Paradigm of Western Civilization
 constitutional politics cannot possibly be understood without reference to the respective and
related histories.
 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.

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 Cont…

 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 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.

 The Second World War left a complex and menacing situation for the national 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.

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 Developments in Ethiopia

 Traditional institutions plays important role in the process of nation building for that matter in the
emergence and development of legal institution.

The 1931 Constitution: the Japanese Paradigm

 The constitution was meant to serve as an instrument of centralization under the Emperor,
reflecting the traditional institution of absolute imperial power without any limitation and
modification.

 This constitution is nothing less or nothing more than a mere confirmation of the powers and
prerogatives of the Emperor, which he would, in any case have exercised.

The 1955 Revised Constitution

 This constitution, like any other constitution, defined and distributed powers, rights and
obligations within the Empire, notably between the Emperor who had the most self sufficient
source of political authority, on the one hand, the rest of branches of government (which enjoy
derivative power, either or both from the crown and the people).
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 Cont…

 The Emperor held a pre-eminent place in the constitution. He stood apart from other agencies of
government and at the same time, he was the embodiment of them all; and as such he enjoyed a lot of
executive, legislative and judiciary prerogatives. There were others with respect to which he shared
power also.

1974 Revolution and the 1987 Constitution

 The national “Shengo” (Parliament) was modeled after the Supreme Soviet of the U.S.S.R. It had a
standing body, the Council of state, which was acting as executive committee of the parliament.

 The president of the council was also the president of the Republic. The power to interpret the
constitution and the constitutionality of other laws were given to this body. This is a contradiction in
terms, for the council itself was the main stay of parliamentary and presidential powers.

 The president is the head of the state, He had the power to present the Prime Minister, and through him
members of the council of Minister to the Parliament, Upon the occurrence of compelling circumstances,
the President had the power to dismiss and appoint the Prime Minster and other ministers.

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 Cont…

The 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 in an explicit manner, it can be inferred from the Charter itself and from the subsequent
proclamations that the forthcoming constitutions would make the Country a federal one. Party
pluralism has also been an innovation of the Charter.

 The 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.

 The Charter in its preamble having declared the ”starting of a new chapter in Ethiopian history in
which freedom, equal rights and self-determination of all peoples shall be the governing principles
of political, economic and social life,”

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 Cont…

 With respect to the central government, the Charter having stated that the Transitional Government
shall exercise all legal and political responsibilities for the governance of Ethiopia, proceeded to
establish the Council of Representatives, which exercised legislative functions and oversaw the
work of the Council of Ministers.

 The highest executive organ of the National/Regional Self-Government was the Executive
Committee of 11 to 19 members elected by and from the National/Regional Council. The
executive Committee was accountable both to the Council of Ministers and to the Council that
elected it.

 With respect to the Court structure, the Proclamation envisaged a wereda and a superior court
system. The Proclamation also referred to the Central Government’s court system. Thus, it
envisaged two parallel court systems.

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 Chapter III & IV
Making and creating paradigm of Constitutions by Classifications
Making a Constitution: What a Constitution should contain?
 The major purpose of a constitution is to establish the main 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?
 Finally, when we come to the question whether the public should be involved in the constitution
making, it seems quite obvious to see public participation as much as possible. This depends very
much on the method of constitution making. The open process of decision-making and referendums are
optimal methods for ensuring public participation.

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 Status of International Instruments under Ethiopian Constitutional
Framework

 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’ Representatives, 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.

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 Cont…

 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 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 ever 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.
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 Cont…

Classification of Constitution By looking at the Nature of the Constitution itself: Traditional approach:
Written/unwritten, codified/ un codified
 It is generally agreed that the written /unwritten dichotomy is false distinction as there is no constitution
which is entirely unwritten and nor is there a constitution which is entirely written.
 What is meant by a written constitution is, therefore, one that is reduced into a form of a document having
special sanctity.
 Unwritten constitution on the other hand is one which has grown up on the basis of custom rather than
of written law. Notable in this regard is the United Kingdom. But then, there is a great deal of statute law
that could properly fit into the realm of constitutional law, and much of it treats fundamental political
institutions in the same way as “written” constitution does.
 Classification of constitution into written/unwritten based on degree of codification, degree of written
detail, and origin of the written text of the documents.
Rigid/flexible, Conditional/unconditional Classification
 A written constitution is a standard of reference for classifying constitutions as rigid or flexible as
unwritten/un codified or non-documentary constitution cannot be other than flexible, and it is possible for
codified/documentary constitution to be either flexible or rigid.
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 Cont…

 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.

Federal/Unitary classification By looking at the Nature of the State itself

 The classification of constitutions into federal, unitary and confederate is based upon the principle by
which the powers of government are distributed in the constitution between the government for the
whole country and governments which may be established for its constituent part.

 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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 Cont…

 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.

 If the government of the whole country is rather subordinate to the governments of the parts, the
constitution of such state would come to have another name - a confederate constitution.

 Confederation may be used to describe a form of association between governments whereby they
set up a common organization to regulate matters of common concern but retain to themselves, to a
greater or less degree, some control over this common organization.

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.
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 Cont…

 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 provide 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.

Republican/Monarchical Classification

 A constitution can be classified as republican or monarchical though such classification has a

lesser significance nowadays. The classification on the basis of this distribution is so less
significant that it means little more than that where the head of state is a president, then that
state is a republic, and where the head of state is a king, that state is a monarchy or a
kingdom.

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 Cont…

Unicameral/Bicameral
 Uni cameralism 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.

 A theory in favor of this view is that the functions of a second chamber, such as reviewing or
revising legislation, can be performed by parliamentary committees, while further
constitutional safeguards can be provided by a written constitution.

 In many instances, the governments that now have unicameral legislatures were once bicameral
and subsequently eliminated the upper chamber. One reason for such a change is because an
elected upper house has overlapped the lower house and obstructed passage of legislation

 Bicameralism: In subsequent constitution making, federal states have often adopted

bicameralism, and the solution remains popular when regional differences or sensitivities
require more explicit representation, with the second chamber representing the constituent
states.
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 Cont…

 Growing awareness of the complexity of the notion of representation and the multifunctional
nature of modern legislatures may be affording incipient new rationales for second chambers,
though these do generally remain contested institutions in ways that first chambers are not.

 The relationship between the two chambers varies; in some cases, they have equal power, while in
others, one chamber is clearly superior in its powers. The first tends to be the case in federal
systems and those with presidential governments. The latter tends to be the case in unitary states
with parliamentary systems.

 Some political scientists believe that bicameralism makes meaningful political reforms more
difficult to achieve and increases the risk of deadlock (particularly in cases where both chambers
have similar powers). Others argue strongly for the merits of the 'checks and balances' provided
by the bicameral model, which they believe helps prevent the passage into law of ill-considered
legislation.

 Tri cameralism is the practice of having three legislative or parliamentary chambers. It is

contrasted to uni cameralism and bicameralism, both of which are far more common.
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 Cont…

 Bolivar's tri cameralism: Simon Bolívar, the South American revolutionary leader, included a tri
cameral legislature as part of his proposals for a model government. Bolivar described the three
houses as follows:

 Chamber of Tribunes, holding powers relating to government finance, foreign affairs, and war.
The tribunes would, unlike the other two houses, be popularly elected.

 Senate, political body holding powers to enact law, supervise the judiciary, and appoint regional
officials. Bolivar believed that the senate should be hereditary, saying that this was the only way to
ensure its neutrality.

 Censors, a group who would act as a check against the powers of the other two. Bolivar described
them as "prosecuting attorneys against the government in defence of the Constitution and popular
rights". He also said that they should ensure that the executive was functioning satisfactorily,
perhaps having powers of impeachment.

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 Cont…

By looking at the nature of the Executive

 We can further create typologies of constitutions by looking at the nature of the executive. When
we create a typology of the executive, we have to take into consideration the fact that the
quantum, quality and configuration of power assigned to the executive is a function of
variety of factors.
 By taking this multiple factors in the Wight, they may bear upon the system which one may
characterize as (a) mono cephalous, (b) bicephalous and (c) acephalous or dispersed leadership.
The word “cephalous” finds its origin in Greek to refer to multiple headed Gods.
a. Monochepalous Executive: The best typology in this respect is the kind of executive we find in
Britain parliamentary or cabinet form of government (executive).
 Although in this form of government, the executive is drawn out of the parliament, particularly
from that of the House of Commons, once it did so, it’s no more an adjunct of the parliament,
rather it’s an independent entity.

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 Cont…

 This entity consists of two separate, distinct, and yet connected offices: the Office of Prime Minister and
that of the Counsel of Ministers. The two offices are connected by the person of Prime Minster for he is
the chairman of the Council of Ministers. (single man is superior)
b. 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.
 This was deliberately made by the 1958 constitution to avoid the appearance of such a single handed
leadership as Charles De Gaul. Hence; this structure of the executive can, therefore, be characterized as
Bicephalous.
c. Acephalous Executive (Dispersed Leadership): When the Fundamental law of Western Germany (The
constitution) was being framed under the auspices of the Allied powers, particularly the USA, Britain
and France, they had to make sure that no one single leader like Hitler will come on the political arena of
Germany.
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 Cont…

 The Chancellor, although holds the top executive Office, shares a lot of his power with a
number of other institutions among which the most notable one is the Central Bank of Germany.
The Governor of this Bank is independent for he leads the countries money industry and
commerce.
 Such power sharing in Germany has been characterized as acephalous executive or dispersed
leadership.
By looking at the Nature of the Judiciary: Prerogative/rule of law system
 The judiciary, the third of the three great departments of the government, can be classified on
various grounds such as whether the judiciary has the mandate to question and interpret the Acts
of the legislature, as in the United States, and those which are but apply the acts without
question as in the United Kingdom.
 Thus, we can divide states into those in which the executive being subject to the operation of
the rule of law (to be discussed later) and is unprotected-the common law states; and the
prerogative states in which the executive is protected by a special system of administrative law.

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 Cont…

Reflections on the Ethiopian Constitution

 Despite the existence of documents akin to constitution, in spirit, in traditional Ethiopia, no

written constitution in the modern sense of the term formed the basis for constitutional
process. Documents noteworthy in this regard includes.

 The Fetha Negest, which regulated the secular and religious aspects.

 The Kibre Negest which served the politico - religious needs of the day.

 The Sere' ate Mengist of the nineteenth century which provided for certain administrative
matters and protocol directives useful to the constitutional process.

 But none of those documents were constitutions in the strictest sense of the term although they
had served specific purposes in the constitutional process.

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 Chapter Five
Forms of Government and Electoral systems

Government: One and major part of a state is the government. There is a major element of confusion in the
discussion of the nature and incidence of state power i.e. the assumption of governmental power being
equivalent and state should often appear as synonymous; for it is the government which speaks on the
states behalf.
 Government is the important machinery by means of which state maintains its existence. Even though,
they are not the same, the concept of state and government is not seen in isolation because if there is no
government then there is no state.
 Government is an agency that is sufficient to maintain order, to perform required services and to
carryout international obligations. Government includes the legislative, the executive and the judicial
bodies and administrative agencies who work on behalf of the state.
Systems of Government
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. The parliamentary governments of different countries are not carbon
copies of the British system.
 The FDRE government is a parliamentary system of government.

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 Cont…

Important Features of a parliamentary system of Government: It is the British system that has set an
example for the rest of the world as far as the parliamentary system of government is concerned.
Although some differences are expected, the following are considered to be features of
parliamentary system of government.
 In a parliamentary system, the president /king/queen is the head of state and he/she is only a
formal, not an effective head of the executive. Although the president/king/ queen are the head of
the state, he/she is not the chief executive.
 The prime minister is either appointed by the head of state or elected by the legislature forms the
majority party in the house. Other ministers are nominated by the prime minister after his/her
appointment or election. In Ethiopia, the prime minister has the power to nominate even those
persons who are not members of either of the houses.
 In a parliamentary system, ministers are members of the parliament. This does not necessarily
mean that all the ministers are members of the parliament in all parliamentary systems.

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 Cont…

 In some countries (e.g. United Kingdom, India) all of them are members of the parliament and
in some others (e.g. Ethiopia), some of the ministers may be not be members of the house.
 Members of the government have a double role to play in the parliamentary system. They are
not only ministers but are at the same time members of the parliament.
 Another important feature of a parliamentary system is that the political party or the coalition
of political parties that has the greatest seats in the parliament makes the government.
 In a parliamentary system, the government has no fixed tenure as it may have to go out any
moment if the majority in the parliament withdraws its support.
 This could happen when the parliament (house) passes a vote of no confidence with respect to
the policies and programs of the governing party. Then the government party shall lose its
power and right to lead the executive.
 In this case, the chief executive may resign or may request the president to invite political
parties to form a coalition government.

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 Cont…

 The house may be dissolved and a new election will be conducted. The governing party rarely
withdraws from its power when we see the practices of many parliamentary countries. Because,
in parliamentary systems, there is a strong party discipline.
 That is members of the governing party or opposition parities have the responsibility and
obligation to support every proposal of their respective parties. Therefore, in parliamentary
system, there shall hardly be a debate between members of same party.
 Parliamentary systems have collective or collegial executives (e.g. a council of ministers, an
organ which incorporates the prime Minster and his/her cabinet).
 The executive in parliamentary system is responsible to the legislature. The legislature conducts
control over the executive’s functions nearly on a day-to-day basis.
 A parliamentary government though directly responsible to the assembly (house), is only
indirectly responsible to the electorate.
 Many parliamentary democracies possess one ultimate instrument for controlling their
governments: the vote of confidence or of no confidence.
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 Cont…

Presidential system of Government: There are many countries in the world with a presidential type
of government system. The presidential systems in different countries have certain differences.
Usually, it is the American presidential system that is taken as a model.
Important Features of a Presidential System of Government
 Parliamentary theory implies that the assembly and government are fused in a parliament.
Presidential theory on the other hand requires the assembly to remain separate from the
government.
 In a presidential system, the president is the head of the state and the effective head of the
executive. The system is known as presidential because the president is the chief executive. He
enjoys ultimate power of decision and, therefore, has complete political responsibility for all
executive actions. In presidential systems the president appoints secretaries who are heads of
his executive departments up on the approval of the assembly.
 In most of the presidential systems, neither the president nor any of his ministers/secretaries can
be a member of the legislative organ.

35
 Cont…

 A member of the legislature can join the executive only after resigning his membership in the
legislature.

 In a presidential system, the executive does not depend for its survival on a majority in the
legislative organ. That is, the president may be member of the majority party or he may even
member of the minority party in the legislative organ.

 The president has a constitutionally guarantee and fixed tenure and his government has the
same fixed tenure. He cannot be removed or dismissed before the expiry of his term by an
adverse vote in the legislative organ.

 However, he may be removed from his office only by the highly unusual and exceptional
process of impeachment (Impeachment is a criminal accusation against the president when he
commits a grave crime against the country and constitutional order). Presidents can be removed
from office only through death, resignation, inability to discharge the conviction on charges of
treason, bribery, or other serious crimes.

36
 Cont…

 In a presidential system, the president dominates the cabinet completely as the

heads of government. The Ministers, Secretaries etc. hold their office entirely at his
pleasure and are accountable to him. They are merely the instruments through
which the president’s policy is carried out.

 The president, in most presidential systems is free to dismiss any of his ministers
as and when he likes.

 The ministers are also neither responsible to the legislature, nor are its members,
nor do their function on the basis of collective responsibility.

 The president is not, like parliamentary government, responsible to the assembly.

Instead, he is responsible to the constitution. It is usually the assembly which holds
the president ultimately responsible to the constitution. This does not imply that he/she is
responsible to that body in the parliamentary sense.

37
 Cont…

Semi presidential System of government

 In many countries, there is a system which is not purely presidential and not purely
parliamentarian. It is in between the two systems.
 In particular, it is claimed that the alternation between presidential and parliamentary phase
solves the problem of executive-legislative dead lock which is presidentialism’s most serious
disadvantage.
Rational for semi presidentialism's
 Presidential works well when the president has majority backing in the legislature. The two are
likely to be in harmony, but the legislature is independent and does not need to support the
president uncritically. The problem of deadlock tends to occur when the president lacks
legislative majority support.
 Semi presidentialism's combines the advantages of direct democratic election and stable tenure
associated with a presidential executive and the flexibility of a parliamentary cabinet and prime
minister.

38
 Cont…

 Moreover, president, prime minister, and cabinet together offer much better opportunities than
pure presidential government.
 Avoidance of deadlock and the president’s potential arbitral role.
Critics
 All of the advantages of parliamentarianism and presidentialism's cannot logically be claimed
simultaneously but in phases.
 In its presidential phase, semi presidentialism's has much less potential for coalition-building than
parliamentarianism.
 In parliamentary phase the head of government lacks the advantage of being directly elected.
Nevertheless, semi presidentialism's does have undeniable merits, and it has great appeal-
especially in presidential democracies in which dissatisfaction with presidentialism's has been
growing.
 Semi-presidential system has gone considerable support in many of Latin American countries.

39
 Making of Constitution particularly FDRE Constitution
 Ethiopia is an old polity principally formed through military conquest and the incorporation of vast
lands with diverse peoples with equally diverse linguistic and cultural identities into the Ethiopian
empire.
 As such the source of legitimacy of state power in the country has never been a written
constitutional text. It is often said that the key sources of legitimacy in Ethiopia’s past were force
(conquest, military expansion), religion (i.e. Orthodox Christianity), and tradition (i.e. ‘right’
genealogy)
 This is also in line with the official titles of the supposedly “Solomonic” Ethiopian Emperors
which, roughly, are as follows; “Conquering Lion (marking might, or force) of the Tribe of
Judah(marking genealogy and tradition), Elect of God (marking the vital importance of religious
anointing to qualify for the throne), ... (the name), King of Kings, Emperor of Ethiopia. Hence, the
importance of genealogy and tradition.
 Both in the 1974 revolution and in the drift to a half-hearted liberal constitutionalism in the 1990s,
there was a declared intent to break with this past and set the country on a ‘republican’ road with a
socialist and a liberal touch, respectively, to the democracy that was to be experienced.
The making of Constitution
 The process of the making of the 1995 constitution was principally guided by the provisions in the
Transitional Charter.
 The Council of Representatives shall constitute the Constitutional commission to draw up a draft
constitution. The Constitutional Commission shall submit to the Council of Representatives the
draft constitution.

40
 Cont…

 Upon adoption of the draft constitution by the Council of Representatives the constitution shall
be presented to the people for discussion. The final draft shall be presented for adoption in the
constituent assembly to be elected pursuant to the final draft of the constitution.
 The making of the Ethiopian constitution underwent the stages of drafting, deliberation,
adoption, and ratification.
 Debates were lively. The chairperson of the Commission encouraged decisions by consensus,
though it was not always possible to reach a unanimous decision. The diversity of the
Commission members meant that a great number of interests were represented. Informal
lobbying and negotiations were part of the process. Nonetheless, the Ethiopian Peoples’
Revolutionary Democratic Front (EPRDF), the ruling party, always dominated when an
issue came to a vote, as it had the largest delegation.
 This making of constitution was not fully participatory those who were not sympathetic to the
transitional government and were dismissive of the whole process did not take part in the
consultation.
In a similar vein, James C.N. Paul observes that
 There was little meaningful public participatory debate, especially debate focused on
devolution versus ethnic federalism, let alone sovereignty or self-determination. opposition
parties withdrew. Instead of debating the content of the constitution, they denounced the
legitimacy of the whole project. Just as the EPRDF controlled the Constitutional Commission’s
work, so it controlled the election, and then the deliberations, of the Constitutional Assembly.
41
 Cont…

 Paul also refers, albeit only tangentially, to the fact that, on assumption of power, the TPLF was
instrumental in “establishing an essential foundation for a federal constitution, creating de
facto one-party rule, marginalizing Amhara and Oromo opposition, and liquidating the Eritrean
problem.
 The issue of the exclusion of the numerically dominant Oromo and Amhara groups from the
constitution-making process is more boldly spelt out by Ugo Mattei who points to the weak
popular support for the constitution among these groups. In his own words, he says, none of
the political and ethnic forces which make the opposition to (EPRDF) had participated in the
Constitutional making.
 All opposition parties, most importantly, those representing the Amhara and Oromo groups (38 and
35% respectively) withdrew from the electoral competition.
 The new constitution is therefore supported politically and ethnically only by the Tigrayan
minority which counts less than 10% of the population.
 Paul also observes that “in view of the constitution’s content, it seems regrettable that the processes
for making it were so flawed.
 After the draft was deliberated upon and was eventually adopted by a majority vote in the COR, it
was presented by the Commission to the public.
 Thus, discussions were staged in the Keble's. In Addis Ababa, school premises were used for the
popular discussions. The turnout was low. Interest was at its minimum for a constitutional
deliberation.
42
 Cont…

 The second phase, the phase of deliberation, was closed although a new discussion, meant only
for adoption, is yet to start in the Constituent Assembly. Regarding the process of the discussions
that led to the adoption of the constitution, John Markakis observes that it was largely
unanticipated, and followed a brief but intensive period of publicity to mobilize support.
 He goes on to say that, because the process was rushed, “it is fair to say that not many Ethiopians
who live in the countryside have a clear notion of what federalism means, or had the opportunity
to express an opinion on its merits. There was simply no time to form a national consensus on the
legitimacy of the new political system.
 The third phase, the phase of adoption of the draft constitution (as enriched by comments from
the COR and the people, much less by the latter), started immediately upon the election of the
members of the Constituent Assembly.
 The discussions ended with the adoption of the final draft submitted by the Commission to the
Constituent Assembly apparently. One can take the adoption by the Constituent Assembly as a
form of ratification of the constitution by the people albeit indirectly through their representatives.
 Consequently, but unlike other systems, there was not a popular ratification of the constitution
through referendum. But given the general lack of the festive mood attendant to constitutional
moments, and the fact that the process was rather speedy, as Markakis observed, one wonders if
the referendum, apart from allowing one more opportunity for participation, would result in a
different content.

43
 Overview and Salient features of the FDRE Constitution

 The 1995 constitution is different from all other constitutions that were formulated in the history
of the country. It changed Ethiopia from unitary to a federal state.
 Also it gives importance to Ethno-linguistic composition of the state. It is not the constitution of
the Ethiopian people rather it is the constitution of the nation of nations. This constitution has
106 articles in eleven chapters.
 Ethnicity as a Major Component.
 Parliamentary Democracy
 The Right to Secession
 Ownership of Land
 Language Policy
 The Importance of Religion
 Fundamental Rights and Freedoms
 Constitutional interpretation
 Constitutional Amendment
 State of Emergency
 This constitution provides for a federal government of nine ethnically based regions governed by
a parliament divided into HPR and HOF. It provides for parliamentary system, with a mostly
ceremonial president as head of state, and executive power vested in council of ministers headed
by prime minister.
44
 Cont…

 The constitution expressly provides for a set of basic human rights; Article 13 specifies that these
rights and freedoms will be interpreted according to the UDHR, ICCPR and other international
instruments adopted by Ethiopia.
 The document further guarantees that all Ethiopian languages will enjoy equal state recognition,
although Amharic is specified as the working language of the federal government.
Basic Principles of the 1995 Constitution
 Sovereignty of the People: It indicates that power is vested in the hand of the people. The
ultimate decision making power resides on the hand of the mass of Ethiopia. The constitution
stated under article 8 that All sovereign power resides in the Nations, Nationalities and People of
Ethiopia.
 Supremacy of the Constitution: The constitution stands out at the apex of all laws. It means the
constitution is the supreme law of the land .Article 9 (1) of the constitution states that the
constitution is the supreme law of the land … any law that contradicts with the constitution has no
legal effect.
 Respect of Human Rights and Democratic Rights: Unlike the previous constitution, the FDRE
constitution has incorporated fundamental rights of the people. This right is drafted by taking in to
account the international human right instruments. The constitution states that they shall be
interpreted in accordance with international instruments. The constitution has devoted almost 1/3
of it for declaration of fundamental rights.

45
 Cont…

 Separation of State and Religion: The dictum of separation of state and religion is called
secularism. In Ethiopia history there was close alliance between religion and state especially
during the monarchial era. Indeed there was state religion. According to the FEDRE constitution
(Article 11), state and religion are separate and there is no state religion. This also includes that
religion shall not interfere in state affairs and vice -versa.
 Accountability of the Government: This principle mainly advocates that officials should be
responsible for their failure while executing the function of the government. This principle has
been recognized in the Ethiopia constitution under article 12(2) that any public officials or elected
representative is accountable for any failure in office duties. In order to fully implement the just
mentioned article the participation of the public plays a great role.
Interpretation of a Constitution: Constitutional interpretation, or constitutional construction, the term
more often used by the Founders, is the process by which legal decisions are made that are
justified by a constitution, although not necessarily correctly.
 Constitutional controversies are about whether an official act is consistent with, and authorized by,
a constitution or constitutional statute or court decision.
Methods of Constitutional Interpretation: 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.
 Textual: Decision based on the actual words of the written law, if the meaning of the words is
unambiguous.
 Since a law is a command, then it must mean what it meant to the lawgiver.

46
 Cont…

 If the meaning of the words used in it have changed since it was issued, then textual analysis
must be of the words as understood by the lawgiver, which for a constitution would be the
understanding of the ratifying convention or, if that is unclear, of the drafters.
Historical: Decision based less on the actual words than on the understanding revealed by analysis
of the history of the drafting and ratification of the law, for constitutions and statutes,
sometimes called its legislative history, and for judicial edicts, the case history.
Doctrinal: Decision based on the prevailing practices or opinions of legal professionals, mainly
legislative, executive, or judicial precedents.
Prudential: The duty of a good judge is to prevent litigation. Considerations as whether a case is
ripe for decision, or whether lesser or administrative remedies have first been exhausted.
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.
 Equity is a sort of perfect reason which interprets and amends written law; comprehended in no
code, but consistent with reason alone.
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.
 The laws of nature are unchangeable. There is no obligation to do impossible things. The law
requires no one to do vain or useless things. Laws of the state failing, we must act by the law of
nature.

47
 Amendment of Constitution

 The FDRE Constitution embodies provisions that spell out how the Constitution can be amended.
 These provisions are designed to ensure the involvement of states in incidents of constitutional
amendment.
 Formal amendment procedures usually identify the individuals, institutions or bodies that are
authorized to propose amendment to the existing constitution.
 However, the FDRE Constitution does not expressly indicate who can propose an amendment, be
it group of individuals or institutions, and the procedure to be followed for the initiation of
constitutional amendment.
 Fasil argues that the formal initiation of constitutional amendment can come from either the
regional or federal legislative organs.
 He further states where the initiation comes from the regional states, a two third of state councils
must support the draft amendment by majority vote. Otherwise, either of the federal Houses can
initiate a constitutional amendment by a two third majority vote.
 One can possibly infer from Fasil’s argument that an amendment to the Constitution can be tabled
either by the federal Houses or State Councils but not by the general public.
 On the other hand, the Constitution requires a proposed constitutional amendment to be submitted
for discussion and decision to the general public and to whom the amendment of the Constitution
concerns.
 The role of the public seems either to approve the proposed amendment whenever it provides for a
better protection, or reject the proposal when a proposed amendment adversely affects the
minimum constitutional privileges.
48
 Cont…

 As a matter of fact, the Constitution does not indicate the role of the general public in the
ratification process. It only mentions the involvement of the members of the federal Houses and
regional state councils (i.e. Article 105 of FDRE Constitution).
 One can thus argue that any proposal of constitutional amendment may be submitted for approval
irrespective of its rejection by the general public.
 On the other hand, the aforementioned argument can be regarded as incongruent with the
sovereign power of people since the members of the legislative councils are representative of the
people.
 What follows from this is that the constitutional amendment process should be controlled and
owned by the people who form state power. This leads to interrogating the legitimacy of
legislative councils to act contrary to public need.
 Even if both have different tests, the need of the people should have greater weight on what
should be included in and excluded from the Constitution.
 Article 105 of the FDRE Constitution, titled “Amendment of the Constitution”, provides for
different amendment standards or amendment procedures to modify the various sections of the
Constitution.
 The first category of procedures requires majority approval from both federal houses, in addition
to simple majority vote from each of the nine regional states legislatures. This characterized as
special amendment.

49
 Cont…

 The second category of amendment formula requires a two third majority of both houses in a joint
session and majority approval from two third of the states’ council. This characterized as ordinary
amendment.
Ordinary/General amendment procedure: This general amending formula applies to wider sections
of the Constitution.
 This kind of procedure is applicable to all provisions of the Constitution other than those
provisions, which are found in Chapter Three, Articles 105(1) and 104.
 It requires majority approval from two third of the states’ council of member states, followed by
the approval of the House of Peoples’ Representatives and the House of Federation by two-third
majority vote in joint sitting.
Special amendment procedure
 The matters that fall within the scope of this stringent standard are the sections that deal with
fundamental rights and freedoms and a provision that deals with constitutional amendment.
 These provisions require the unanimous assent of all member states, by majority vote, followed
by the approval of the federal houses, sitting and voting separately, in which the requisite
approval must be a ‘double majority’ of votes, which involves members of House of People
Representatives and House of Federation.

50
 Policy Objectives and Principles

 These policy objectives and principles represent a list of instructions and directions on the
governance of the country.
 The FDRE Constitution clearly accords a ‘guideline’ status for these national policy principles
and objectives. As a result, they must guide the implementation of the Constitution, laws, and
policies.
 This has its own implication on the amending power, which must be directed by them as well.
 For instance, the political objective requires the government to be guided by democratic
principles. Moreover, it also requires the government to respect people’s self rule right and the
identity of Nations, Nationalities, and Peoples.
 These objectives and principle have some effect upon the bodies having the power to change the
Constitution in the sense that they are required to be guided by them as an organ of the
government at the federal as well as regional state levels.
 These guiding principles dictate how the amending power must be exercised to bring
constitutional changes in Ethiopia.
 In other words, the HoPR, HoF and Regional Sate Councils need to keep these principles in
mind when amending the Constitution.
 Therefore, the declarations provided under the preamble, amending clause, state of emergency
clause, Chapter Two, and Chapter Ten of the FDRE Constitution together gives a
comprehensive view of the fundamental values and principles of the Ethiopian Constitution.
51
 Cont…

 These values and principles are not mere cosmetic constitutional declarations without any legal
significance.
 Rather, they would control the width and the extent of the amending power in the sense that the
power may not be exercised in a manner that transcends them.
 As a result, the constitutional amendment power exercised by HoPR, HoF and regional state
councils would necessary be shaped and controlled by these principles, which define the
character, the end for which the Constitution was established and the nature of the constitutional
system.

52
 Organs and structures of the state

 State structure refers to state forms on how power and responsibility are distributed at
different level of government. Based on this there are unitary, federal and Confederal states.
 The classification about the forms of state is related with structure and distribution of state
power. So in history, commonly practiced forms of state are unitary, federal and
confederations
1. Unitary Form of State
 Unitary state (or as the wording of the political philosophy in many instances used to call it as
that of Unitarism) is a form of state that is characterized by centralization of power and
indivisible sovereignty.
 In unitary state, there is only one source of authority though territorial units exist. Territorial
units are merely agencies of the central government established for its convenience in local
administration.
 They owe their legal existence to it. Their power is increased or diminished or their legal
existence diminished.
 Therefore, the following are distinctive qualities of unitary form of state.
 Supremacy of the central legislature in unitary form of state, there is only one kind of
legislature parliament, which is always supreme. It is the only body that enacts and monitors
the law of other bodies.

53
 Cont…

 Absence of subordinate sovereign bodies this is to mean that the local authorities, territorial units’
subsidiary bodies, are not sovereign. Because, it is generally accepted that modernity in Unitarism
is indivisible.
 On the other hand, subsidiary legislature can exist when duly represented by the central
government. It can be annulled at any time.
2. Federalism
 Federalism is simply a covenant/ agreement between the pre existing unit (groups) and the federal
government.
 Federal form of state is thus which power is formally divided between national government and
certain local regional governments, each of which is locally supreme in its own sphere.
 In federal state, the legislative authority is divided between a central or federal power and smaller
units sometimes called regions, cantons, states, provinces.
 It provides for actual division of powers between two or more nearly independent governments
each of which exercises control within its scope of authority over the same people.
 As compared to unitary state type, the power of the federating units and federal government are
clearly stated by their constitution which cannot be changed without the agreement of the
federating unit & the federal government.
 Therefore, federalism is state structure in which power is divided between the federal government
and sub-territorial government (local units). The power and function of the sub-territorial
government is recognized by the constitution of the country.

54
 Cont…

 That is, each level of government can make final decisions with respect to its area with out the
permission of central government. For example, all regions in Ethiopia have their own
constitution, flag, police force, anthem etc. however, some of the functions of the state like
foreign policy, national defense, international trade and currency are considered as function of the
central government because these functions needs uniformity.
 Ethiopia accepted the system of federalism in the bases of ethno-linguistic diversity that exist in
the country.
Variations among federal states
 Federal systems may be created by the voluntary agreement of independent states. It can also be
created after experiencing confederation as in Switzerland, Germany and USA or through the
influence of the mother country when a number of separate colonies federally united as in Canada
and Australia or by the division of previously unitary states as in Brazil. Today, Federalism is the
basis of political organization of several states.
 So, it varies from place to place and from time to time the indispensable quality of a federal state
is being distribution of the powers of the government between the federal authority and the
federating units.
 The federal type of constitution has been adopted and is adopted by a number of nations in Africa
Asia and Latin America as a response to their often widely diversified linguistic, territorial and
political traditions like Ethiopia, India, Nigeria and Brazil.

55
 Cont…

Distinctive features of federalism

 Existence of dual polities: In federal system there is dual form of government federal Authority
( Government ) and Federal units ( linguistic or cultural or territorial units )
 Supremacy of Federal constitution: Federal authority and Federal units have constitution of
their own. Though federal units have their own local constitution; they are accountable to that of
the federal constitution. The federal constitution contains articles that stipulates about power
distribution, rights and duties of the Federal Authority and units.
 Supremacy of Federal Authority: In most states the federal authority has power to interpret the
constitution. Together with this the federal authority has power and privileges in conducting key
issues and activities of the country.
power distribution in Federalism
Exclusive power
 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.
 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.
 In theory the exercise of such an exclusive power as described in the federal constitution is left
entirely to the entity to which it has been attributed.
 Looking at federal level, there are certain functions of government, which in a federation are and
ought to be exclusively with in the power of the federal government; such functions by their very
nature cover the entire territory of the federation and apply equally to all member states and
citizens.
56
 Cont…

 Generally speaking, defense powers, foreign trade and foreign affairs have been the domains of
the federal government.
 According to American federal tradition and the interpretation given by the Supreme Court, the
federal government cannot claim power not allocated to it by the Constitution.
 According to Laurence Tribe an act of congress is invalid unless it is affirmatively authorized
under the Constitution while states’ actions in contrast are valid as a matter of federal
Constitutional Law, unless prohibited explicitly or implicitly by the Constitution. This is what is
known as the doctrine of enumerated powers.
 The Ethiopian Constitution in general follows the United States’ and Swiss’ forms of distribution
of powers.
 According to Article 50(2)of FDRE constitution, the federal government and the states shall
have legislative, executive and judicial powers.
 Although it is a fact that none of the constituent states existed as autonomous entity, owing to the
aggregate nature of the federation, the federal government appears to be one with enumerated
and limited powers and the federation is based on the accommodation of diversity.
 It is worth noting that the powers granted to the federal government are not limited to the list
under Article 51. It might appear that by virtue of the reserve clause, any power not mentioned
under article 51 belongs to the states, but other provisions of the Constitution also indicate
additional powers entrusted to the federal government.

57
 Cont…

 In general it appears that Article 51 was intended to cover a whole list of powers conferred on
the federal government, while others were meant to allocate these lists of power to each
federal departments of the federal government and other bodies akin to it like that of the
Office of the President (As can be gathered from the Minutes of the Constitutional Assembly).
 Yet, what appeared as final product did not reflect this intention, for we find powers seem to
be additional; i.e. under Article 55, 74 and 77.
 Some of the exclusive federal powers not mentioned under Article 51 but indicated elsewhere;
include the power to enact labor, commercial, penal code, approval of federal appointments
submitted by the executive, and the establishment of federal institutions.
 Article 51 has therefore failed short of incorporating all powers that the Constitutional
Assembly sought to have endowed to the federal government.
 So the reserve power of the states only applies after discounting all power of the federal
government distributed throughout the Constitution.
 It is also worth noting that the Ethiopian Constitution provides neither for the ‘necessary and
proper’ clause nor for any express comprehensive list of shared powers.
 The Constitution empowers the federal government to formulate and implement the country’s
policies, strategies and plans in respect of overall economic, social and development matters.
Establish and implement national standards and basic policy criteria for public health,
education, science and technology.

58
 Cont…
 The same Constitution also empowers the states, among other things, to formulate and execute
economic, social and development policies, strategies and plans for the state.
 The big question is to draw the borderline between the two, but certainly there is no doubt that
this makes most of the policy making areas concurrent.
 The general principle, on which allocation of responsibilities has usually been based is the vague
concept that matters of national importance should be reserved to the federal government, while
matters of regional importance should devolve to the states.
 Broadly speaking, the exclusive federal power includes: defense, foreign affairs, immigration,
major taxation powers, currency and foreign exchange, foreign and interstate trade, maritime
shipping, inter-regional communication, postage and matters physically transcending state
boundaries such as high-way transport services and key aspects of economic activities, for which
uniform regulation is deemed important. Some of these powers are justified on the ground that it
would mean unnecessary multiplication of authority, creation of inconsistent directives and
creating chances of friction.
 The field of defense is considered mostly an exclusively federal power. It is the essence of
federalism to accommodate diversity but war-like circumstances require centralized power to
discharge effectively. Besides, the history of older federations indicates that one of the reasons to
join the federations was to have a common defense.
 Furthermore, the centralization of defense is supposed to back foreign relations. For these reasons
the control of armed forces, control of land, naval and air forces, were not only believed to
reinforce political influence in international politic but also to minimize armed conflicts.

59
 Cont…
 Yet while maintaining the basic principle that defense remains federal, the states have in many
cases been involved one way or another with at least the police force of their own for maintaining
law and order within their respective territories.
 Traditionally it is the need for centralization of foreign powers in the hands of the federal
government that among other things was the driving force among older federation in their bid to
transform themselves from a confederation to a federal polity.
 In fact, one of the reasons for establishing a federation was the need for a unified foreign policy.
As a result, in many cases foreign relations are the exclusive domains of the federal government.
 In some federations, however, the states have obtained formal representation in international
forum, particularly when the matter concerns the interest of the states.
 The general principle, on which allocation of responsibilities has, usually, been based in the vague
concept that matters of national importance should be reserved to the federal government, while
matters of regional importance should devolve to the states.
 But the principle does not tell us much about the specifics of what powers should go to the federal
government and which one to the states. Besides, it has not been possible to avoid the provision of
a wide range of shared powers
 What is of national or of local importance cannot be decided on any priori basis and federal
Constitutions show variations in this regard.
 The other two aspects of power distribution in federal systems are shared powers and concurrent
powers, of which the most important aspect of power allocation is that of shared legislative power.

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 Cont…

3. Confederal state
 Confederations are voluntary associations of independent states.
 It is the sort of association of states which rests up on the common agreement of its members
expressed in an elaborated document; confederations are formed for common advantages without
so affecting internal freedoms, structure, law making and law enforcing process and external
relations of the state of confederation.
 It differs from an alliance in that it has fixed central organ through which the common wills of its
members may be dully expressed. It also differs from a union or a league in a greater variety of
objectives designed to achieve accordingly. Above all, these objectives include internal security,
promotion of cultural unity, operation of postal service, etc.
 Historically, confederations are often proved to be first or second step towards the establishment of
a national state usually as a federal union. The federal form of sate in Switzerland, Germany and
USA was preceded by confederations.
 The common wealth of nations, which was formed in 1972 is an instance of that of confederation
born as a result of decentralization an eventual disintegration of Empire UK and former British
colonies.
 In contemporary world, there are modern forms of confederations. Te modern Confederal
arrangements are established around common defense (NATO) and economic alliances
(COMESA), (EECD ) and etc.

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 Historical development of separation of powers

 The separation of powers is a fundamental pattern for governance of any country. This pattern is
the most important constitutional constituent in any country throughout the globe. When we
hear the term separation of powers we immediately understand that it consists of three branches
in most countries.
 The separation of powers is a pure model of democratic societies and it consists of executive,
the legislature and judiciary branches.
 The separation of government responsibilities into different branches commonly limits them
from exercising the fundamental functions of each other. The reason is to stave off the
concentration of power on one branch and to diversify the government’s liabilities.
 The importance of separation of power can be seen in monitoring the political system and
advocate new measures when the rights of people are threatened. Doubtless the separation of
powers is a decision for this process and concept.
 The separation of powers concept was first originated in ancient Greece and became widespread
in the Roman Republic as part of the initial Constitution of the Roman Republic.
 The Aristotle (384-322 BC) in his book The Politics stated that: There are three elements in
each constitution in respect of which every serious lawgiver must look for what is advantageous
to it; of these are well arranged, the constitution is bound to be well arranged, and the
differences in constitutions are bound to correspond to the differences between each of these
elements. The three are, first, the deliberative, which discusses everything of common
importance; second, the official; and third the judicial element.
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 Cont…

 At the time of Edward I reign (1272-1307) the separation of powers was emerged in England, with
the appearance of Parliament, the Council of King and the courts.
 Baron Montesquieu, French Enlightenment political philosopher, who lived in England from 1729-
1731 promote the concept of Montesquieu tripartite system.
 This term describe the division of political power into executive, the legislature, and a judiciary.
Baron Montesquieu ascribed this model to the British constitutional system, a separation of powers
among the monarch, Parliament, and the courts of law. However this was misleading because
Untied Kingdom had close connection of executive and legislature. Baron did specify in his book
De l’spirit des Lois" that the independence of the judiciary has to be real and not apparent merely.
 When the legislative and executive powers are united in the same person, or in the same body of
magistrates, there can be no liberty…Again; there is no liberty if the power of judging is not
separated from the legislative and executive.
 If it were joined with the legislative, the life and liberty of the subject would be exposed to arbitrary
control; because the judge would then be the legislator. If it were joined to the executive power, the
judge might behave with violence and oppression.
 There would be and end to everything, if the same man, or the same body, whether of the nobles or
the people, were to exercise those three powers, that of enacting laws, that of executing public
affairs, and that of trying crimes or individual causes.

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 Separation of powers in Presidential System
 In a presidential system of government, the president is directly elected by the people in a
general election. The constitution does not allow the president to appoint his ministers from
parliament but rather from outside. All executive powers are vested in the president and he
performs both the ceremonial duties and the governmental functions.
 The legislature: The legislature is also elected directly by the people or in places where the
second chamber operates, by use of other means. The members cannot ever become members of
the executive. The constitution does not allow that. The legislature is responsible for the making
of laws for the state.
 The judiciary: The members of the judiciary are appointed by the president but this is based on
the recommendations of the Judicial Service Council of the state. The main function of the
judiciary is to interpret the laws of the land and to settle disputes that arise between one person
and the other or between the state and an individual.
Limitation on separation of power in Presidential System
 Application of theory is only in personnel: The closest to the application of the theory of
Separation of Powers is the presidential system of government but even then, it is only
applicable in terms of separation of personnel. The members of the Executive are distinct from
the members of the legislature and the judiciary. In terms of independence and functions, the
separation is not absolute.
 Inbuilt checks and balances: In practice, the organs of government serve as checks on each
other. The executive appoints ministers but the ministers must be vetted and approved by the
legislature before the executive can appoint them. The legislature makes laws but the bills must
first be accented to by the executive before it can become law. Where the legislature and the
executive violate the constitution, the judiciary can declare their actions null and void. Such
checks serve as a limitation to the full implementation of the concept of separation of powers.

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 Cont…

 May run governance to a halt: If the operation of the concept is cast in an iron, it may run the
government to a halt. This is because the various arms of government will operate completely
oblivious of the existence of the other. Meanwhile most constitutions are designed a way that
would make the arms of government operate in tandem with each other.
 Independence is unreal: The concept denotes that the three arms of government must be
independent of each other, but in practice, they are not really independent. The executive needs
the legislature to get its budget proposal passed. The legislature needs the executive to get its
allowances and emoluments through. The judiciary needs the executive to get it appointed. The
executive and the legislature need the judiciary to be able to keep with the dictates of the
constitution. In the real sense of the word therefore the organs of government are not completely
independent of each other.

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 Separation of powers in Parliamentary System

The meaning of the doctrine of separation of powers

 The concept of Separation of Powers was propounded by Baron de Montesquieu. It states that
the three arms of government -the Legislature, Executive and the judiciary -must be separate and
independent in terms of personnel, functions and powers. In other words, the personnel in the
legislative arm of government must not be the same as those in the executive or the judicial arm
of government. Also the members of the legislature must not have the same functions and
powers as those in both the executive and the judiciary.
What is a parliamentary system of government? The parliamentary system of government refers to
the system where the three arms of government, that is, the executive, legislature and the
judiciary are fused into one in the performance of the functions. In this system, the members of
the executive are at the same time members of the legislature. Also the highest court of the land
is part of the legislature-the House of Lords. This has since been amended though.
Separation in institution: The three arms of government are separate in terms of institution. The
judiciary, as an institution, is different from the executive and the legislature. They may even be
housed in different locations or buildings.
Separation in personnel: The members of the executive are all members of the legislature. In fact,
the head of the executive is the leader of the majority party in the legislature. Some of the
members of the legislature are also members of the judiciary. For example, in Britain, the Lord
Chancellor is a member of both the legislature and the executive in spite of the fact that he is the
head of the judiciary.

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 Cont…
Executive as initiator of bills: In the parliamentary system, it is the cabinet that initiates bills before
the bills are sent into the legislature. By the time the bills get to the parliament, they may have
been well thought through and therefore there is not much to do before the bills are passed. Even
if it becomes difficult, the executive has majority in parliament so it can force the bill to go
through.
Court of Appeal: In the past, the highest court of the land was the House of Lords. Though the House
of Lords was the second chamber of the legislature, it was at the same time the Court of Appeal.
This has since changed. Today, there is a Supreme Court separate from the House of Lords.
Collective responsibility: The members of the executive, that is the cabinet, are as a bloc responsible
to the legislature for every action they take in the performance of their duties. The only way a
cabinet member can absolve him or herself of blame is when a decision is made in cabinet is to
resign. Once he or she does resign, he is bound by every decision that is made.

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 Organs of the state

 The state is divided into three branches or organs. These are the legislative, the executive and the
judicial organs.
 Each of these organs has its own specific powers and functions. Each of them is vested with these
powers and functions by the constitution. The fact that these various organs of the state have their
own powers and functions does not suggest absence of relations between the powers and
functions of the organs.
 In accordance with the highest ideals of the representative democracy, all the political institutions
and organs of the state, i.e. the executive, the legislature and the judiciary serve the common
national interests and ends.
 In this view of the matter, the three organs of the state are not competing organizations but are
supposed to complement and supplement each other. The functions and powers of the three
organs are directed to wards the ultimate goal of the government and the common good of the
people at large.
 The division of the authority of the state into three categories is linked with a system of
management of the state affairs caring for the welfare of the people.
 In the wider view, the three organs are separate but equally important parts together constituting
the whole.
 The organs of the state could also be referred to as the organs/ body or branches of government.

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 Cont…

The Legislature
 The legislature is a lawmaking organ. The parliament in Ethiopia is referred to as the federal
house. There are two houses of parliament here in Ethiopia.
 Many countries have a bicameral parliament that is their parliaments have two chambers. There
are also countries with a unicameral parliament. Although it is conventionally considered that the
legislature is a lawmaking organ, the functions of this organ are more than that.
 The legislative functions consist mainly in the enactment of laws which may be necessary for
regulating the society in general.
 In a democratic set-up parliament or the state legislature being representative institution of public
will has to play, as such a major role in socio-economic transformation. Laws made by the
parliament or the state legislature play very important role for they regulate the society.
 Considering the importance of laws for the society, the process of law-making under the rules of
procedure, is very rightly covered with time consuming technicalities.
 Formulating and introducing bills, giving these bills successive ridings, sometimes referring them
to committees also, voting on them which may even involve the time taking division and finally
sending them as completed measures to the president and respectfully requesting for his assent
are the technical formalities involved in the law making process. It must be noted here that this is
not the only functions of the parliament.

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 Cont…
The executive
 This is the organ which executes the laws made by the legislative organ. In Ethiopia the federal
executive consists of the prime minister, the president and the council of ministers.
 Of the organs of the state, the biggest institution is the executive. It has so many departments as its
functions effectively, the executive is given much power. The executive plays vital roles in the
governmental activities.
 In Ethiopia the word executive generally refers to not only to the government itself, but also to the
administration placed under it.
 Since the highest executive powers of the federal government are vested in the prime minister and
in the council of ministers, they are mainly responsible to perform the executive functions of the
federal government.
 Executive functions of the prime Minster and the council of ministers are multifarious and it may
be difficult to exhaustively list down all of them. The government in exercise of its executive
power is charged with the duty and responsibility power may be said to be residuary, that is to say,
any function not assigned to the legislative or the judicial organ may be performed by the
executive.
 A primary function of the executive is to administer laws enacted by the legislature, but executive
function is not limited only to this. A modern state does not confine itself to a mere collection of
taxes, maintaining law and order and defending the country from enemy. You can read the breadth
width of the function of the executive by reading article 71-77 of the EDRE constitution, which
has clearly shown the all-encompassing nature of the executive.

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 Cont…
 The function of the executive is basically involves enforcing laws passed by the House of Peoples
Representatives.
 The core organ of the executive is the council of ministers. The council of ministers has the power
to protect patent and copy rights; it shall implement socio-economic policies and strategies; it shall
provide uniform standard of measurement and calendar, it shall formulate the countries foreign
polices and exercise overall supervision over its implementation; it shall draft laws and submit the
same to the House of Peoples Representatives; it shall enact regulation pursuant to powers vested
in it by the House of Peoples Representative.
 The executive also widely participate in judicial activities. This is usually seen in government
departments. A notable example is the decision making role of the tribunal (court) at the federal
Civil service commission. This tribunal acts as an appellate court for grievances presented by the
civil servants against the decisions of disciplinary committees in government offices.
 The tribunal at the federal civil service commission is not and integral part of the judiciary. It is
part and parcel of the executive. But it passes decisions by following-court-like procedures.
 There are a number of government departments (administrative agencies) that involve in judicial
functions. These functions can be considered to be quasi-judicial (or semi-judicial) functions. In
many instances, parties who are aggrieved by the decisions of the executive organ go to the
judiciary by way of appeal.

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 Cont…

The Judiciary
 The judiciary in all democratic countries is independent as far as its structural organization and its
functions are concerned.
 It is believed that the judiciary is detached from politics and hence expected to act in a neutral
manner. That is, it is exacted to render impartial decisions, even if one of the disputing parties is
the government. The judiciary in a democratic system is the guardian and defender of the
constitutionally guaranteed rights of individuals.
 Only an impartial and independent judiciary can stand as a wall for the protection of the rights of
the individual. It is clearly of great importance that justice be dispensed fairly in the impartiality of
the judiciary.
 The very essence of the independence of the judiciary is that, the judiciary is to be directed only by
the law and should be free from any influence of the legislative or the executive branches of the
state.
 The judges apply the law or rule to particular cases and in that process they have the power to
expound and interpret the law. The power to interpret the law involves necessarily the function to
ascertain whether they are conformable to the constitution or not. The judiciary is the guardian of
the constitution and safeguards which has hitherto been indented against unconstitutional
legislation.
 Judicial independence may be related with the structural independence and decisional or functional
independence.

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 Cont…

 With respect to structural or organization independence, judicial powers have to be vested in the
courts. The judge should not be removed from duties before retirement, unless he/she commits an
offence violating disciplinary rules or unless he/she is incompetent, etc and it must be financially
independent of the executive.
 With respect to the functional independence, the judges should exercise their functions in full
independence without the intervention of any government official or any other organ. They have
to be insulated from politics of any nature.
 In some federal countries, the judiciary is unified and in others it is dual. In countries with unified
system of courts, the Supreme Court, the high courts and the lower courts constitute a single
judiciary having jurisdiction over all cases arising under any law whether enacted by the federal
or state legislatures. In such countries, there is a supreme court at federal level, which enjoys the
top-most position in the judicial hierarchy of the country. The state judiciary does not have a
supreme court. The state judiciary consists of a high court and a system of subordinate courts.
 On the other hand, in some other federal systems, like in our country there is a dual system of
courts. In these countries, there are separate and parallel judicial system at a federal and states.
 Such countries usually follow the doctrine of judicial federalism. Judicial federalism consists of
two policies: namely, preserving the integrity of state law, and respecting institutional autonomy
of sate judicial systems. In view to preserving the integrity of state law, the federal courts are
expected to refrain from potentially erroneous or highly intrusive scrutiny against state laws.

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 Cont…

 On the other hand, the powers of federal courts are limited for the purpose of preserving the
institutional autonomy of state courts.
 In many democratic countries, the judiciary is given a place of great significance primarily; the
courts constitute a dispute resolving mechanism. The primary function of the courts is to settle
disputes and suspense justice between one citizen and another. But courts also resolve disputes
between the citizen and the state and the various organs of the state itself.
 In many countries with written constitutions, there prevails the doctrine of judicial review. What
do we mean by judicial review?
 It means that the constitution is the supreme law of the land and any law inconsistent with the
constitution is void. Courts exercise the power of declaring any law or administrative action which
may be inconsistent with the constitution as unconstitutional and hence void.
 In such countries, by doing so, they act as protector and guardian of the supremacy of the
constitution by keeping all authorities legislative, executive, administrative, judicial or quasi-
judicial- within legal bounds.
 In Ethiopia, the organ empowered to interpret the constitution is the house of the federation. But
this does not mean that courts are totally prohibited from interpreting the FDRE constitution. The
scope of interpreting the constitution by the house of the federation seems to be related only with
respect to testing the unconstitutionality of laws made by the federal or state legislatures. (art.
84(2)), see especially the Amharic version.

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 Cont…
 From this constitutional provision, one may safely conclude that the courts can apply the
constitution, in so far as there is no need of interpreting the constitution. Article 3(1) of the federal
courts proclamation No. 25/1996 stipulates that; “federal courts shall have jurisdiction over cases
arising under the constitution. When they apply the constitution in their day to day activities, they
are expected to interpret the constitution.
 To give a simple example, someone may allege that one of his fundamental rights recognized in
article 19(1) of the FDRE constitution is violated because he is treated or punished in a cruel or
degrading manner. In this case, the court must interpret as to what a cruel or degrading treatment
or punishment constitute.

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