Constitutional Law

Chapter One and Two

• There should exist on one and the same territory only one, full
sovereign state; i.e. the rule of the exclusiveness of a single
sovereignty over the same territory.28 The first and perhaps the
true exception in this respect is the so-called state-condominium,
• 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.
• 1.2.3.1 Forms of Sovereignty in International Law
• Sovereignty is a multifaceted concept. discussed
six main forms of sovereignty:
• a. Internal or Territorial Sovereignty
• Within its own territory, each of these states is
exclusively sovereign, in the sense that it has
“exclusive competence” or “domestic
jurisdiction” and the monopoly of power over its
territory and nationals.
• b. External Sovereignty
• The state is externally sovereign, in the sense that it
is not subjected (against its will) to another state or
to any higher authority. International Law, however,
imposes certain limits to both the internal and
external aspects of sovereignty of states.
• c. Sovereign Equality
• All states are juridically 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. In
this way, the European states could directly protect the
lives and properties of their nationals abroad. Thus,
European states deprived African states of accomplishing
one of their international functions; which is that of
protecting the life and the property of nationals of other
states within their territories.
• 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.44 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. What
about Congo?
• These entail, among wealth and resources, due care for the
environment, and equitable use and management of trans-
boundary resources.
• To sum up, more attributes of states can be and is, more
often than not, supplied with further designating
attributes such as national flag, national anthem,
national emblem, national currency and other national
symbols. The whole purpose is designation of a state in
the international community and signifying the creation
of nation-statehood in the heart and minds of people. It
is as well a mechanism of reaction enhancement and/or
assertion of the feeling of nationalism, the significance
of which the lowest denomination is the individual, be
that physical or juridical
 4 The Concept of Nationality
• Nationality of an individual is his quality of being
a subject of a certain state. Hence, it is one of the
attributes given to a physical person. It owes its
origin in the notion of allegiance given by the
subject to the king. Accepting the protection of a
state actually required owing allegiance to it.
• The five most common modes of aqcuiring
nationality are birth, naturalisation,
reintegration, annexation and cession.
 Democracy and Constitutionalism
• Democratic theory is based on a notion of human dignity;
dignity taking the central and highest value worthy of respect.
And adults ought to be endowed with a large degree of
political autonomy – a status principally attainable by being
able to share in the governance of the state they belong to.
• Because direct rule is not feasible, people can engage
themselves in self-government only by delegating authority
to freely chosen representatives.
• “[n]o right is more precious in a free country than that of
having a voice in the election of those who make the laws
under which [the]…must live.”
• Constitutionalists tend to be more pessimistic about human nature,
fearing that people are sufficiently clever to oppress without hurting
themselves. Constitutional theorists do not deny the importance of
institutional checks but see those as insufficient. They are constantly
concerned with the human propensity to act selfishly and abuse power

• Constitutionalism, therefore, pertains to two kinds of relationships. The

relationship between government and nationals/citizens, residents/ is
the first category – the substantive. The second (the formal) refers to
the appraisal of one branch of government vis-à-vis the other; and to
their inter-relationship. It is these two aspects of constitutionalism
which are the quit-essentials of a constitution, be that written, rigid,
flexible,
 The Concept of “Constitution”

•  a nation‘s constitution should pattern a political

system.
•  A Constitution as a Charter for Governments
•  A constitution as a guardian of fundamental rights:

• The constitution as covenant, symbol, and aspiration:

• a constitution may serve as a binding statement of

people‘s aspirations for themselves as a nation
•  Rule of Law
•  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. Laws should be written with reasonable clarity to avoid unfair
enforcement.
• 4. Law must avoid contradictions. (intelligibility)
• 5. Law must not command the impossible. ( Non self-contradictoriness)
• 6. Law must be general.
• 7. Laws must stay constant through time to allow the formalization of rules; however; law also
must allow for timely revi-sion when the underlying and political circumstances have
changed.
• 8. Official action should be consistent with the declared rule. (Congruency)
• 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 accountability and transparency, information
technology systems may be installed to provide greater public
access.

• Independence, accountability, efficiency, access, affordability,

alternative dispute resolution mechanisms, and the quality of
professionals are some of the characteristics that may provide
an accurate measurement of the system‘s success.
• Another important goal for rule of law reform
is to develop the legal rules first and fore-
most as Fuller stated, “law must exist”, before
one begins to talk about rule of law
•  The very term Rule of Law suggests that
the law itself is the sovereign, or the ruler, in a
society.
 Chapter Two
• The 1931 Constitution
•  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.
•  The constitution was not intended to serve as an
instrument of modernization, albeit the establishment of
parliament, which had, but only the power of discussion.
•  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), on the other, and
finally the constitution had also incorporate, the basic tenets of fundamental human and
political rights from the united Nation Universal Declaration of Human Rights 13 to which
Ethiopia was, then a signatory, which did not matter much, for it was a mere declaration, not
a convention.
•  The Emperor held a pre-eminent place in the constitution

• The power to determine the organization and jurisdiction of government departments, as well
as to constitute the civil service belonged to him.

• The legislative body was bi-cameral: Senators were appointed from the nobility and a few
from the commons for their meritorious achievements, while the Deputies were directly
elected from equally populated constituencies
• The judiciary was appointed by the Emperor
• The Emperor had also judicial function, in the
capacity of final appellate court of equity.
• 1974 Revolution and the 1987 Constitution:
•  The organ of state machinery was also curved
out from socialist countries.
• The national “Shengo” (Parliament) was modeled
after the Supreme Soviet of the U.S.S.R.
• The president enjoyed a lot of power. He was the Head of State
and had no less power than any head of Government. He had the
power to present the Prime Minister, and through him members of
the council of Minister to the Parliament, as well as the power to
ensure that the council of Ministry discharged its responsibilities,
and presided over the council as necessary. 63 Upon the occurrence
of compelling circumstances, the President had the power to
dismiss and appoint the Prime Minster and other ministers.
•  Judges were elected, recalled and dismissed by the parliament
and more interestingly the term of their office was made to be
congruent with that of the parliament.
•  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.
• The Charter declared that the provisions of the Universal Declaration of Human
Rights were respected fully.
• Article 1: Based on the Universal Declaration of Human Rights of the United Nations
of December 10, 1948, Individual Human Rights shall be respected fully and without
any limitation whatsoever

• The Charter in its preamble declared the overthrow of the military dictatorship that has
ruled Ethiopia for seventeen years. It presented a historical moment and opened a new
chapter in Ethiopia in which freedom, equal rights and self-administration of all the
peoples shall be the governing principles of political, economic and social life.
The 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.
• 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