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Legislative proposals and application of human right treaties in Ethiopia

LIKU WORKU

Introduction

It has often been considered that every addition of a new law in a statute book is
amending a prior existing law. As a result, analyzing legislative proposal both in its
relation and in its effect with rights and privileges under existing and established law
continues to be an important subset of Legislative Drafting. A person engaged in
analyzing the legislative proposal should either be familiar with the existing relevant law
or know where it can be found. Existing laws, among other things, constitute human
right treaties that a country has ratified and form part of its domestic law – either by way
of ‘legislative’ or ‘automatic’ incorporation. Legislative and Automatic incorporation of
human right treaties into domestic law is traditionally known as ‘Dualistic’ and ‘Monistic’
methods respectively. Regardless of whether a domestic law society is monist or
dualist, one way of complying with human right treaties is through analyzing legislative
proposals as to whether domestic draft laws accord with the values and principles
enshrined under human right treaties.

The main focus of this essay is to examine the Ethiopian method of implementation of
international Human right treaties with an emphasis on its impact on drafters’ analysis of
legislative proposals. Although the implementation of human rights entails a wide array
of activities, this essay briefly discusses incorporation of international standards into
domestic laws as a main focus from the variety of activities that states are to take at
national level. This essay argues that the method of implementation used by Ethiopia is
ineffective and has deprived drafters from analyzing the consistency of legislative
proposals with human right treaty provisions. In doing so, the essay proceeds as
follows: section one offer the Ethiopian method of implementation of human right
treaties. Section two explores Ethiopian drafters’ analysis of legislative proposals and
the problem they face as a result of the method of implementation. The final section
draws the threads together and concludes the essay.

I. Method of implementation of Human Right Treaties in Ethiopia

As there are no stipulations on how states should implement human rights standards at
international level, the implementation of international human right treaties is dependent
on domestic law and entirely left to the states to decide on how obligations will be
implemented. Domestic legal system must provide favorable legislative and
administrative frameworks if treaty based guarantees are to be translated into reality for
domestic beneficiaries. In addition, human right treaties incorporate a set of values that
have to be respected during interpretation, application and development of legislation
and statutory laws. As a result, states must affirmatively incorporate international human
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right treaties into domestic laws as one method of implementation. Although there are a
great variety of domestic methods for implementation of international human rights
instruments, there are two common ways of constitutional method which determines the
implementation of treaty provisions into domestic laws: legislative incorporation and
automatic incorporation. In some countries with the ‘legislative incorporation’ method
such as United Kingdom, there is a separate legislative Act enacting specific provisions
of a treaty for the incorporation of treaty provision into domestic laws. This method is
referred to as ‘dualist’ in that a strong distinction is maintained between domestic and
international law, and the latter must be written into the former in order to carry
substantial and enforceable weight. In other countries with the ‘automatic incorporation’
method like France, without the need to have separate legislative Act, ratification and
publication in the official Gazette simply converts treaty provisions into domestic
law. This method is referred to as ‘monist’, in that both domestic and international law
are considered equal and as having the same effect.

The method of incorporation of international human right treaties in Ethiopia indicate

that Ethiopia does not strictly adhere to one method of incorporation as the Ethiopian
constitution provides for both methods.

One the one hand, article 9(4) of the Ethiopian Constitution declares that “All
international agreements ratified by Ethiopia are integral parts of the law of the land.”
From international law point of view, the wording of this provision tends to show
international agreements need to be transformed as the word ‘…law of the land’
usually refers for international agreements to be transformed, rather than merely
adopted, into municipal law. Transformation in dualistic state refers to a situation where
relevant domestic laws are amended or repealed to comply with international
agreements. International agreement in Ethiopia is concluded by the State’s Executive
branch which must subsequently submit it for ratification to the House of Peoples
Representatives (HPR hereafter). Under Article 55(12) of the Ethiopian constitution, the
HPR ‘shall ratify international agreements concluded by the Executive.’ In addition,
article 2(2) and (3) of the Proclamation of Federal Negarit Gazette requires that all Laws
of the Federal Government shall be published and all Federal and Regional legislative,
executive and judicial organs should take judicial notice of laws published under the
Gazette. Once they are ratified, all international agreements, including human rights
instruments, are integral parts of the law of the land (Art.9 (4) of the constitution).
According to these provisions, Ethiopia could be classified as dualist as a national
legislation needs to be promulgated in order for the provisions of international
instruments to be implemented at the domestic level. However, all ratification
proclamations contain only three and sometimes four provisions with short title,
responsible organ (sometimes), ratification, and effective date. Although the dualist
method is much known for its ‘transformative’ concept, the Ethiopian parliament only
declares a mere pronouncement through ratification proclamation. There are neither
laws which are amended as a result of ratification nor repeal with the ratification
proclamation. In Ethiopian history of ratification proclamation, there is no single
ratification proclamation with the actual ratified treaty and there are no translations of
the actual treaty provisions.
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On the other hand, from hierarchical point of view the Ethiopian constitution tends to
prefer the monistic method of implementation of international human right treaties. In
most monistic approach countries, international treaty norms have a higher rank than a
domestic legislation or equal to constitution and sometimes higher than the constitution.
In Ethiopia’s pyramid of law the normative hierarchy of ratified treaties is controversial.
There are two-tiered dimensions to the status of ratified human right treaties. On one
hand, the provision of Article 9(1) of the constitution which establishes the supremacy of
the constitution and declares any inconsistent law with the constitution as null and void
has led to the assertion that the constitution is superior to all ratified international
agreements. A literal reading of Articles 9(1) and 9(4) of the constitution clearly indicate
that international agreements, which under Article 9(4), are made an integral part of the
laws of the land upon ratification, are subordinate to the constitution. On the other hand,
ratified agreements are ‘integral parts of the law of the land’ and ‘the constitution
(Chapter Three) must be interpreted in conformity with international
instruments adopted by Ethiopia’ under Articles 9(4) and 13(2) of the constitution
respectively led to the conclusion that international human rights
instruments adopted have a status higher than, or at least equal to, Chapter three of
Constitution itself.[16] While an exhaustive treatment of these issues is beyond the
scope of this essay, the wording of Article 13(2) of the constitution at least makes it
apparent that Ethiopia cannot issue legislation that contravenes any of the fundamental
rights and freedoms stipulated under chapter three of the constitution. The fundamental
rights and freedom provided in the constitution are subject to a special interpretative
regime which should comply with principles of international human right
treaties adopted by Ethiopia. This special feature gives international human right
instruments at least equal hierarchical status to the constitution. Therefore, as the
constitution under article 13(2) clearly stipulates Ethiopia cannot lawfully issue domestic
proclamations that contradict its treaty obligations which is purely a monistic approach.
But again the major human right treaties that the constitution is referring for authoritative
interpretation are not yet translated and published in the official Gazette as the monistic
approach so requires.

Moreover, recent trends of judicial practice also support the conclusion that a
proclamation that contradicts ratified treaties should be disregarded. In the case
between Federal Police Criminal Investigation and Department v Naod Misale and
others,[17] the court has decided that the law amending the Federal Anti-corruption
Proclamation and the provision ‘A person who is arrested on suspicion of having
committed a corruption offence shall not be released on bail’[18] has led to the
violations, inter alia, of Ethiopian’s international human rights obligations, particularly
those guaranteed by the ICCPR. The court has ruled out this ‘prohibition of bail’
disallows the right to bail and it does not empower the police to keep suspects in its
custody indefinitely.

Thus, the Ethiopian legal system employs both a ‘dualistic and monistic’ method for
implementation of human right treaties into domestic law.Once Ethiopia has ratified an
international agreement and decided to incorporate it into domestic law that
incorporation seems to be done through a mere ratification proclamation adopting the
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treaty provisions entirely. They have neither been transformed into Ethiopian laws by
separate legislation nor have so far been published in any other main vernacular
languages.

This method of implementation of human right treaties has confused and deprived
legislative drafters from taking due care in analyzing legislative proposals against
international human right treaties that form part of Ethiopian laws. Now let us consider
how officer and draft person check the relation and effect of legislative proposals with
human right treaty provisions in Ethiopia.

II. Analysis of Legislative Proposals with international human right treaty

provisions

The process of legislative drafting comprises various stages through which the drafter
converts a government’s often broadly defined policy objectives into clear and precise
statutory language that accomplishes the legislator’s goal. As Thornton has identified
one way of achieving the goals of the legislator is through a complete and thorough
analysis of proposed legislation. The relation and effect of legislative proposals must be
carefully analyzed with existing laws which among other things compromises
International human right treaties. Both the drafter and those who instruct must be
involved to consider whether every element of the proposed legislation adheres to with
basic principles of the legal and constitutional system.

This also holds true for Ethiopian legislative drafting process. The Ethiopian legislative
drafting manual provides that legislative proposals should be checked against existing
law(s) and existing legal structures. Particularly a drafter is required to make sure that
legislative proposals are consistent with international agreements ratified by Ethiopia
and other international instruments adopted by Ethiopia. Here the question is –are
drafters in Ethiopia in a position to check the consistency of legislative proposals with
international instruments as set out in drafting manual? The answer for me is No.
Drafters are not in the position to check and ascertain the consistency of legislative
proposals with human right treaties.

As noted earlier, the Ethiopian constitution seems to favor both a dualistic and monistic
approach. But this method has a number of purely practical problems both for the
drafter and for those involved in drafting process.

Firstly, there is an acute lack of translations of human right treaties and decisions of
international organs. This problem is more aggravated by the Ethiopian federal system
where there are constitutionally entrenched distributions of powers between States and
the Federal government to enact law and execute with their respective working
languages. Leaving aside members of the federation, Amharic is the working language
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of the federal government. As a result drafters first draft in Amharic and then translate it
to English. Both the drafting instructions and analysis of legislative proposals are
conducted through Amharic. Thus, drafters tend to neglect the relation and effect of
legislative proposals with international human right treaties in general. As a matter of
practical experience, when drafters fails to analyze and produce draft law which is not
consistent with existing laws, discussion at ministerial level and parliamentary
committees should identify the inconsistency and refer it back for detailed consideration
and correction. However, as there is neither the actual ratified text nor translation of the
treaty the problem continues to be a common problem for those involved in the
legislative process as well. Even if those involved in the legislative process including
instructing officers, drafters, different ministries and parliamentary committee wants to
check the compatibility of legislative proposals through English, there is a problem of
inadequate access to ratified human right treaties. In many cases there is no means of
knowing or perhaps it is very frustrating to search which human right treaties become
part of Ethiopian laws. Consequently, most consideration is spent on the draft laws
compatibility with the provisions of the constitution and other Ethiopian laws.

The other main exacerbating factor that contributes for the poor analysis of legislative
proposals with human right treaties is that legislative drafting tends to be handled by
decentralized drafting offices in different ministries. Each ministry has the power to
initiate policies and laws and send its draft either to the Ministry of Justice or the Prime
Minister’s Office where the draft laws compatibility with criminal law and with major
policies of the government is analyzed respectively. Drafters in each ministry are
lawyers (sometimes not) specializing in the ministry’s own sphere of activities and have
little knowledge and limited access to human right treaties. They continue to have
inadequate training both in legislative drafting and human right treaties. Therefore, the
room for analyzing drafting proposals is very limited. Furthermore, most drafting works
are carried out by a working group or a committee or special advisers, or one-person
committees formed from different civil servant officials. The working group or committee
is given a clear task and express mandate to draft laws in the form of government
proposals within the time limit set by the instructing ministry. As soon as the draft is
finalized the committee or work group members will return to their former official duties.
Ad hoc committees and working groups usually spend more time to produce what the
instructing ministry’s desire and the room for analysis of legislative proposals with
international human right treaty provisions becomes less important. Lack of awareness
because of the confusion created by the method of implementation in the constitution,
language barrier and inaccessibility of treaties are the obvious reasons for the non
existence and poor analysis of drafting proposals.

In addition, language barrier and inaccessibility of international human right treaties as a

result of the method of implementation contributes for the poor preparation of drafting
instructions. As Thornton identified good drafting instruction among other things will
illuminate the impact of the proposals on existing circumstances and law. A well
developed and prepared drafting instruction will help the drafter to identify and refer any
standards and international obligations that might be affected by the proposals.
Although complete and comprehensive drafting instructions are not yet developed in
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Ethiopia, few prepared drafting instructions fail to accommodate the relation of

proposals with ratified human right treaties because of language and accessibility
problems. This in return creates further problem to the drafter, working force or
committees and gives blurred picture on the intended goal of legislation and avoids the
opportunity to check proposals compatibility with ratified human right treaties.

As a result of this, there is a growing new legislation that reflects a poor analysis of
drafting proposals that result in apparent contravention of ratified human right obligation.
Recent laws all of which were prepared by selected from different civil service working
groups such as: The Charities and Societies Proclamation, the Prevention and
suppression of Money Laundering and the financing of terrorism Proclamation and Anti
– Terrorism Proclamation are among the laws that have key provisions that violates
Ethiopian’s obligation under ratified Human Right treaties. These laws have been
criticized by the outside world, most notably by the Human Rights Watch and Amnesty
International.

The law on NGOs; for example, declares that foreign NGOs are prohibited from
engaging in activities pertaining to human rights, women’s rights, children’s rights,
disability rights, citizenship rights, conflict resolution and democratic governance.
Furthermore, local NGOs are considered as foreign NGOs if they receive more than ten
percent of their funds from foreign sources. These provisions have been repeatedly
declared as a limitation of freedom of association and freedom of expression under
article 22 of UDHR, articles 19 and 22 of the ICCPR and articles 9 and 10 of
ACHPR. As Human Rights Watch has repeatedly pointed out the Anti-terrorism
proclamation also contains provisions criminalizing speech that incites or supports
terrorism which is actually limits the freedom of expression. The prevention and
suppression of money laundering and the financing of terrorism Proclamation is
currently under revision because the proclamation lacks consistency with human right
treaty obligations. Furthermore, the African Commission on Human and Peoples’ Rights
calls the government of Ethiopia to:

Amend the Charities and Civil Societies Proclamation in accordance with the UN
Declaration on Human Rights Defenders.

Remove restrictions on freedom of expression imposed on the Mass Media by the

Access to Information Proclamation (2008) and the Anti-terrorism Proclamation (2009)
that do not conform to rights of freedom of expression provided in international human
rights law.
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Conclusion

In summary, although the Ethiopian constitution favors for both dualistic and monistic
methods of implementation of human right treaties, there are neither transformation into
domestic laws including amendments and repeals as dualistic approach so demands
nor any single translation and publication of the actual treaty provisions as the monistic
approach so requires. This in result produced lack of human right treaty texts into one of
the main vernaculars of the local languages, lack of access to international human right
treaties and decisions, and led drafters and other officials in drafting process to focus
only on constitution and other domestic laws.

Lack of sufficient training, federal system with more local languages, decentralized
drafting method including drafting in different ministries and drafting through working
groups and special committees from different civil service, are the aggravating
circumstance for the poor analysis of legislative proposals. This has diminished the
quality of legislation and contributes for ineffective legislation which results with
international condemnation including from International Human Rights Watch and
Amnesty International.

Further steps need to be taken to enhance the accessibility of international agreements,

including local language versions of international human right treaties. Furthermore, the
training of draft persons on the relation and effect of human right treaties with drafting
process is an important contribution to the application of human right treaties in
Ethiopia.