Unit Four: Constitution and Constitutionalism

UNIT FOUR: CONSTITUTION AND CONSTITUTIONALISM
----*UNIT FOUR
4. CONSTITUTION AND CONSTITUTIONALISM
Introduction
In this unit, you will assess the major characteristics feature of constitution and
constitutionalism. Constitution as a fundamental or supreme law of a country or a state it
have its own principle. A given country needs to have a constitution not only to limit the
government power but also to grantee freedom and right to their citizens. So, when you
go through this unit you will notice not only the major purpose and functions of
constitution but also hopefully you will observe its historical development. As far as
history is concerning, there is traditional and modern classification of constitution,
however, here we will give emphasis on the latter to go through classification of
constitutions. In doing so, you will assess the Ethiopian constitutional experience.
Finally, you will look at the fundamental principles enshrined in the FDRE constitution.
Objectives
After studying this lesson, you will be able to:
 identify the basic features of constitution and constitutionalism
 list the major purposes and function of constitution
 distinguish modern classification of constitutions
 examine the Ethiopian constitutional development
 identify the nature of the Ethiopian Constitution
 assess the silent features of the FDRE constitution
BDU, FACULTY OF SOCIAL SCIENCES, DEPARTEMENT OF CIVIC AND ETHICAL STUDIES 109
Resource
Alexander, Larry (1998) Constitutionalism: Philosophical
Foundations. Cambridge University Press: Cambridge. (ed)
Clampham, Christopher (1969) Haile-Selassie’s Government.
PRAEGER: New York.
Fasil Nahum (1997) Constitution for a Nation of Nations: The
Ethiopian Prospect. Red Sea Publishers: Lawrenceville.
James Paul and Clapham (1972) Ethiopian Constitutional
Development: A source book. Haile Selassie I university: Addis
Ababa.
Strong, C.F (1963) A History of Modern Political Constitutions.
G.P. Putnam’s Sons: New York.
LESSON ONE: MEANING AND CHARACTERISTIC FEATURES OF

CONSTITUTION AND CONSTITUTIONALISM
Introduction
State is the political organization which is administered by the group of person known as
the government. This government cannot run the state according to the sudden, passing,
and often fanciful idea. There has to be certain rules and principles on the basis and under
the authority of which the government can run the state. This set of principle is called the
Constitution. In this lesson you will assess the basic concepts of both constitution and
constitutionalism. In so doing, you will find out the definition of constitution and
constitutionalism, as well as its major purpose and functions.
Objectives

 define constitution
 define constitutionalism
 identify the major characteristics features of constitution

 describe the fundamental constitutional principles
4.1.1 Meaning of Constitution

What is constitution?
the government. When we say the government of a state, it means basically the executive,
the legislative and the judiciary. But this government cannot run the state according to the
sudden, passing, and often fanciful idea. There has to be certain rules and principles on
the basis and under the authority of which the government can run the state. This set of
principle is called the Constitution. It is the fundamental law of a nation or state that
establishes the institution and system of government, defines the scope of governmental
sovereign powers, and guarantees individual civil rights and civil liberties.
 Constitution is the fundamental law of a nation or state that establishes

the institution and system of government, defines the scope of
governmental sovereign powers, and guarantees individual civil rights
and civil liberties.
Constitution can be defined as: a frame of political society, organized through and by
law, that is to say one in which law has established permanent institutions with
recognized functions and definite rights. Again, a constitution possibly said to be a
collection of principles according to which the powers of the government, the rights of
the governed, and the relations between the two are adjusted.
Constitution is the aggregate of laws and customs under which the life of the state goes
on. Government without a Constitution is a power without a right. Historically, before the
evolution of modern-style, codified national constitutions, the term constitution could be
applied to any important law that governed the functioning of a government. In this case
we can say that constitution is a state book of fundamental political principles, and
establishing the structure, procedures, powers and duties, of a government, which help
the government to guide the nation/state.
To be brief, we know that State, like any other organization, requires a set of laws to
govern itself. Thus, a constitution is a body of laws that determines the nature of the State.
It is a fundamental document according to which the government of the State functions. A
constitution is, therefore, the basic law which defines and delimits the powers of various
organs of the government and it also enumerates the basic rights of the citizens.
 A constitution is a body of laws that determines the nature of the State.

It is a fundamental document according to which the government of the
State functions.
But
whatever its form, a true constitution will have the following facts: first, how the various
agencies are organized; secondly, what power is entrusted to those agencies; and thirdly,
in what manner such power is to be exercised. Like a human body, constitutions have
organs which work harmoniously. In order to function well a state, or body politic, is said
to have a constitution in which its organs and their functions are definitely arranged and
are not subject to the some dictators.
4.1.2 Meaning of Constitutionalism

What is the difference between constitution and constitutionalism?
Constitution consists of a set of rules or norms creating, structuring and defining the
limits of, government power or authority. Understood in this way, all states have
constitutions and all states are constitutional states. Anything recognizable as a state must
have some acknowledged means of constituting and specifying the limits placed upon the
three basic forms of government power: legislative power, executive power and judicial
power. Constitutionalism is thus, the idea that government can and should be legally
limited in its powers, and that its authority depends on its observing these limitations.
 Constitutionalism is thus, the idea that government can and should be

legally limited in its powers, and that its authority depends on its
observing these limitations.
There is a close connection between constitutionalism and the rule of law. Both are
premised on the importance of limits on the power of the state and its institutions, with
law as the principal means of defining and ensuring the limits. In all its successive
phases, constitutionalism has one essential quality: it is a legal limitation on
government; it is the anti-thesis of arbitrary rule; its opposite is dictatorial
government, the government of will instead of law. Both constitution and rule of law
were concerned about the limits on state power, but unlike the origins of the rule of
law, constitutionalism also emphasized the political mandate and accountability of the
government, which placed a greater importance on the legislature.
Have you understood the difference between constitutionalism and rule of law?
Constitutionalism is based on the notion of a supreme law which governs the
jurisdiction and powers of state institutions and determines the limits and mode of
their exercise. The role of the constitution has been to establish institutions of the state
and to define their jurisdiction. There is an assumption that due to underlying cultural
understandings and a common history, there is substantial agreement on values,
aspirations and identity. It is indeed these understandings (and joint commitment to live
together) which makes it possible for the people to form a state.
 Constitutionalism is based on the notion of a supreme law which

governs the jurisdiction and powers of state institutions and
determines the limits and mode of their exercise.
When scholars talk of constitutionalism, they mean not only that there are rules creating
legislative, executive and judicial powers, but that these rules impose limits on those
powers. Often these limitations are in the form of individual or group rights against
government, rights to things like free expression, association, equality and due process
of law. But constitutional limits come in a variety of forms. They can concern such
things as the scope of authority (e.g., in a federal system, provincial or state
governments may have authority over health care and education while the federal
government's jurisdiction extends to national defense and transportation); the
mechanisms used in exercising the relevant power (e.g., procedural requirements

governing the form and manner of legislation); and of course civil rights.
Furthermore, constitutionalism is a system of political arrangements in which there is a

constitution, in which all (particularly the entire system of government) is governed by
the constitution, in which only the people's will can change the constitution, in which
changes can only be made rarely due to the difficulty of acquiring the necessary popular
support, and in which there are separation of power, checks and balances and an
independent judiciary dedicated to legal reasoning to safeguard the supremacy of the
constitution. Thus, constitutionalism need two things: first and for most there should be
democratic constitution and then this democratic constitution must be implemented.
Some scholars argued that, unless a constitution is supreme, it is difficult to talk of the
existence of constitutionalism. That is, the constitutional constraints on various branches
of government should not be unilaterally changed by the departments themselves.
Constitutionalism is a necessary foundation of rule of law. It is the limitation of
government by law. Constitutionalism implies also a balance between the power of the
government on the one hand and the rights of individuals on the other.
 Constitutionalism implies also a balance between the power of the

government on the one hand and the rights of individuals on the other.
In sum,
constitutionalism is the doctrine that governmental power should be constrained by
individual rights and a system of checks and balances, codified in a formal constitution.
The constitution should, moreover, be considered superior to other laws and be enforced
within a legal system with independent courts. At the core of this idea is the view that a
well-functioning political system needs a clear division of power.
Activity: 1
1. Think of any constitution that established by the will of few

individuals, let’s say government, and it is implemented according to
the principles of the constitution. In such away do you think that there
is constitutionalism? Why? Why not?
4.1.3 Major Characteristic Features of a Constitution

Could you mention some of the characteristics feature of a constitution?
A constitution has distinctive features that distinguish it from any other laws. The
following are some of the features of a constitution.
Generality: a constitution provides the general principle of a state and carry on

foundation and sets out general framework of the law and the government. Other laws
provide the details of the subject for which they are created. Constitutional principles are
a guideline for others laws. Any law that contradicts the constitutional provision will be
null and void. In this case, constitution only states the general principles. Thus, this
makes constitution different from other laws that may found in a given country.
Permanency: unlike laws constitution is made for undefined period of time. That means
constitution serve for a long lap of ages. It is purposely made to be stable and permanent.
One of the mechanisms to ensure this permanency is through constitutional amendment.
Judicial interpretation is also another ways of making a given constitution adaptability. In
short, amendment is necessary to offer stability in a country. Thus, constitutional stability
is one of the factors for creating a durable peace in a society. Unstable constitutional
environment mostly indicates a socio-political instability.
What do you think is the importance of making constitution permanent?
Supremacy: a constitution is a supreme law of the land. As a mother of law, it is original
law by which the system of government is created, and to which the branches of
government must look for all their powers and authority. It is original because it is
directly made by the people as the direct expression of the will of the people.
 Constitution is a supreme law of the land.

To ensure this supremacy, the constitution needs to have the following:
First and for most, the constitution must have a supremacy clause. All written
constitutions have this clause. This provision commands that individuals, government
institutions, and private institutions must observe the constitution. The second way of
adjustment of a constitution with a changing need of the people is via interpretation. But
that must be in accordance with the procedures established by the constitution. Other
wise the constitution is at the state of risk. In majority of states, this task is given to the
Supreme Court or a specialized constitutional court. Thus, judicial review should be their,
to ensure the supremacy of the constitution. Finally, in order to make constitution a
fundamental law of the country we need special amending procedures. If the constitution
is amended by those in power, their might be a state of crisis. Thus, the constitutions
must state the amendment procedure clearly; this promotes its supremacy.
Activity: 2
1. In Ethiopia the power to interpret constitution is given to the House of
Federation unlike many other federal countries. What do you think is
the reason? Why not to the Supreme Court? Explain briefly
4.1.4 Fundamental Constitutional Principles
Popular Sovereignty
The concept of sovereignty is one of the most complex in political science, with many
definitions, some totally contradictory. Usually, sovereignty is defined in one of two
ways. The first definition applies to supreme public power, which has the right and, in
theory, the capacity to impose its authority in the last instance. The second definition
refers to the holder of legitimate power, who is recognized to have authority. When
national sovereignty is discussed, the first definition applies, and it refers in particular
to independence, understood as the freedom of a collective entity to act. When popular
sovereignty is discussed, the second definition applies, and sovereignty is associated

with power and legitimacy.
 Popular sovereignty is refers to the holder of legitimate power, who is

recognized to have authority.
To this
end, sovereignty implies the power to have a final say on an issue. The preamble of the
Ethiopian Constitution for instance says, “We the Nation, Nationality and Peoples...
adopted….this Constitution”, expressly providing the doctrine of popular sovereignty, or
rule by the people. Article 8 of the Constitution is more explicit in providing that ultimate
political authority resides not in the government or in any single government official, but
rather, in the Nation, Nationality and Peoples of Ethiopia.
In democracy, the peoples own the government. The delegation of powers in no way
damages or diminishes the peoples’ right as the supreme sovereign. The government's
legitimacy remains dependent on the people, who retain the inalienable right peacefully
to alter their government or amend their constitution. Besides, there are situations where
the people’s sovereignty in a democracy is expressed through their direct participation.
Separation of Powers
Most of the literature on federalism has emphasized the relationship between national and
sub-national governments but overlooked the organization of sub-national powers.
Likewise, the debate on the separation of powers in presidential and parliamentary
systems has neglected the role of federalism in strengthening the separation of powers.
We argue that a federal polity is a constitutional arrangement that creates executive,
legislative, and judicial branches of government in its constituent units. This definition is
applied to all countries that are classified as federations, or unions.
In order to promote accountability of government, hinder corruption and protect the

fundamental freedoms of citizens from the will of the government of the day, it is
essential to keep separate the Parliament’s power to make laws, from the Executive’s
power to administer laws, and from the Judiciary’s power to hear and determine
disputes according to the law. This separation is designed to protect the people from a
concentration of power, and the ability of individuals or groups to manipulate
government for personal gain and to ignore the will of the people. Separation of
powers is, therefore, an essential feature of constitutional government. Further,
constitutionalism ensures that the principal powers of government-legislative,
executive, and judicial-were not monopolized by any single branch.
 Separation of power is designed to protect the people from a

concentration of power, and the ability of individuals or groups to
manipulate government for personal gain and to ignore the will of the
people.
The Rule of Law
In almost all countries, the concept of the rule of law has been reflected either in their
constitutions or statutes. There are two aspects of the rule of law that are important: First,
the law should govern the people and the people should obey the law, and second, the law
must be capable of being obeyed (good laws). This made the rule of law different from
‘rule of men’, where the people were ruled by ‘bad’ laws. In order to maintain the rule of
law, an institution, independent from the legislative or executive or other forces, impartial
and free from interference or influence is required.
 In order to maintain the rule of law, an institution, independent from the

legislative or executive or other forces, impartial and free from
interference or influence is required.
In this
case, the rule of law is the principle under which a government exercises its authority in
accordance with clear, objective, and publicly disclosed laws. Laws must be adopted and
enforced through established procedure and incompliance with international recognized

standards. The rule of law is a key component of a social order grounded in consistency,
predictability, and transparency. It is the foundation of a democratic society-the means by
which people protect their liberty in a society of equals. The principle is intended to be a
safeguard against arbitrary rule.
Independence of the Judiciary
Although judicial independence seems on its face to be an obviously essential

ingredient to any just and fair legal system, a precise definition of the scope of the
principle may be difficult in a world of diverse cultures and legal systems.
Simply stated, judicial independence is the ability of a judge to decide a matter free from
pressures or inducements. Additionally, the institution of the judiciary as a whole must
also be independent by being separate from government and other concentrations of
power. The principal role of an independent judiciary is to uphold the rule of law and to
ensure the supremacy of the law. If the judiciary is to exercise a truly impartial and
independent adjudicative function, it must have special powers to allow it to “keep its
distance” from other governmental institutions, political organizations, and other non-
governmental influences, and to be free of repercussions from such outside influences.
 The independence of the judiciary shall be guaranteed by the State and

enshrined in the Constitution or the law of the country. It is the duty of
all governmental and other institutions to respect and observe the
independence of the judiciary.
Judicial Review
Judicial review is another major principle of a democratic constitution. It is a process of

striking down the acts of parliament and executive decision as invalid when it is found to
be inconsistent with constitutional rules. But which institution of government is suited for
judicial review? Although there are debates at the normative level, in practice almost the
all democracies the task of judicial review, particularly constitutional interpretation, is

given to courts, regular or specialized.
Secularism
Secularism is mostly understood to mean separation of state and religion. Secularism

asserts the freedom of religion, and freedom from the government imposition of religion
upon the people, and absence of state privileges or subsidies to religions.
Activity: 3
1. In our past history until 1974 there was no secularism i.e. separation
of state from religion. Do you know the reason? Please discuss with
your friends or refer history books and came up with tangible
evidence.
LESSON TWO: MAJOR PURPOSES AND FUNCTIONS OF CONSTITUTION
Introduction
The constitution sets out the form of the government, creates the branches of government
and determines their powers and authorities. These are one of the major purpose and
functions of constitution among others. In this lesson you will study the major purposes
and functions of constitution. Consequently, you will test the importance of having a
constitution and you will notice why countries of the world need to have constitution.
Objectives

 identify the major purposes and functions of constitution
 appreciate why countries needs to have constitution
4.2.1 Purposes of Constitution
Among the usually recognized purposes of constitutions the following are the major:
A constitution is charter of government: Government derives its whole authority from

the governed. The constitution sets out the form of the government, creates the branches
of government and determines their powers and authorities. It specifies the purpose of the
government, the power of each department of the government, the state-society
relationship, the relationship between various governmental institutions, and the limits of
the government.
What is the importance of limiting government power?
The constitution is a job description: In a democratic state, the people as a whole hire
some officials to administer the government for public good, and the constitution is the
employment contract and job description. Although many other laws are also job
descriptions for the government, the constitution is the highest. The constitution is a
guide for legislation and for the interpretation of legislation.
Put limits on the powers of government and rights protection function:

Constitutional provision could be enforcing or empowering whose objective is giving
powers to government. But there must also be ‘Negative Clause’ or ‘No Clause’, so that a
constitution could be a guardian of fundamental rights. Negative clauses, by putting
specifically what governments must not do, will limiting and tie the hands of those who
exercise powers. Otherwise, the people will certainly be exposed to various kinds of
abuses of power.
The constitution is a commitment device: In a democratic state, the constitution binds

not only the government, but also the people. Through the constitution, the people
collectively commit to certain institutional procedure for managing public affairs and
resolving social conflicts. Thus, the constitution not only limits the arbitrary power of the
government, it also prevents public administration from being poisoned by people's short-
term temper and passions. Through the constitution, the people collectively commit to be
abide by the terms of constitution.
The constitution as covenant, symbol, and aspiration: In so far as a constitution is a

covenant by which a group of people agree to transform themselves in to a nation, it may
function for the founding generation like a marriage concluded through the pledging
partners’ positive and active consent to remain a nation for better or worse, through
prosperity and poverty, in peace and war. A constitution may serve as a binding statement
of a people’s aspirations for themselves as a nation. In short, a constitutional text may
guide as well as express a people’s hopes for themselves as a society. The ideals the
words enshrine, the processes they describe, and the actions they legitimize must either
help to change the citizenry or at least reflect their current values. Otherwise, it will
quickly fade. This is why we see differences among constitutions.
 A constitution may serve as a binding statement of a people’s

aspirations for themselves as a nation.
LESSON THREE: HISTORICAL DEVELOPMENT OF CONSTITUTIONS IN

THE WORLD
Introduction
In this lesson you will trace back, so as to see the historical development of constitution
in the world. Similarly, you will assess ways of classifying constitution i.e. traditional
and modern classifications of constitution, but here you will see only the modern
classification of constitution.
Objectives

 discuss the historical development of constitution in the world

 identify the difference between written and unwritten constitution
 distinguish the rigid and flexible constitution
 explain the difference between unitary and federal type of constitution
4.3.1 The Origin and Development of Constitution
The rise of the constitutional state is essentially an historical process. The historical
emergence and evolution of constitution can be traced back to earlier stages of
civilization. In the history of human societies, the emergence of constitutional
government is related to the desire to limit the absolute powers of rulers over those who
are ruled. In its modern sense, constitution emerged during the 17th c in England. But the
concepts and practices of constitution as political phenomena extend further back in to
previous historical periods.
The origin of constitution is related to, the law of Hammurabi in ancient Babylon, the
Hebrew constitution, the Greeks, the Romans and Magna Carta. However, here under
let’s precisely look the modern constitutional practices.
Accordingly, in the modern sense, the US Constitution is considered to be the first

written constitution and it has had a profound influence in the history of constitutional
writing in the modern times. The writers of the constitution became the teachers of why
and, most importantly, how constitutions should be written. The principal reason for the
influence of the constitution may be because of its success. That is why the American
constitution is the longest-lived constitution.
Why the American constitution lived long?
In almost all countries in modern times, countries adopt a constitution because they need
to begin with a fresh start. People who administer their affairs according to traditions and
customs do not need a constitution. The memories of their elders are sufficient for them.
Historically when ever a constitution has been framed, it had mostly followed a
revolution. A constitution has been intended to usher in a new social and political order.
In the 18thc, when the first written constitution in the world appeared (i.e. US
constitution) only the bare structure of a federal republic government was laid down. That
was a break with the monarchical colonial links of Britain. With in two years, this
constitution went through ten amendments incorporating the rights of the people in the
form of limits to governmental power.
 People who administer their affairs according to traditions and customs

do not need a constitution. The memories of their elders are sufficient
for them.
In
many countries constitution is considered as an instrument in which government can be
controlled. Thus, at least an amendment of it can be taken place through a special process
different from that by which the ordinary law is altered. What is more, if an act is of
parliament or an act of any state is contrary to the terms of the constitution, it is void.
Historically, the need for a constitution arises as soon as a source of power is no longer
God, but the people. The people need to formalize its social contract and to define the
rules and procedure that regulate the society and the power system in it. Every aspect and
institution of human civilization requires some form of government to prevent injustice
and maintain order. People need boundaries; citizens are subject to the laws of the land in
which they reside.
4.3.2 Modern Classification of Constitutions

How could you classify constitutions?
In effect, it is difficult to divide states into classes by taking each state as a whole in turn,
because the totality of powers of all states is the same; that is to say, every state is a
sovereign body politic. If a community is not this, it is not a state. The only manner in
which states may be differentiated is according to the structural peculiarities of their
governmental organization.
The basis of our constitutional classification, therefore, should be found, under the
following heads: the nature of the state to which the constitution applies i.e. whether
unitary or federal; the nature of the constitution whether written or unwritten and flexible
or rigid; the nature of the legislature; the nature of the executive; and the nature of
judiciary. Accordingly, in this section we will try to see the characteristic features of
written or unwritten, flexible or rigid and finally unitary or federal constitutions.
Written or Unwritten
What is the difference between written and unwritten constitution?
A constitution is a set of rules, generally in written form, which identify and regulate the
major institutions of the state and govern the relationship between the state and the
individual citizen. In most countries the written constitution is the ultimate source of
legal authority; all actions of government and the law-making body (the legislature)
must conform to the constitution. In order to uphold and interpret the constitution there
will be a Supreme Court. As the constitution is the ultimate authority, any action which
contravenes the rules of the constitution will be both unconstitutional and unlawful.
Written constitutions also contain procedural rules for the amendment of the
constitution.
 As the constitution is the ultimate authority, any action which contravenes

the rules of the constitution will be both unconstitutional and unlawful.
Simply, written and unwritten is a distinction between those rules regulating a

government, mostly rule of law-which are written down either in a constitution or in
some act of parliament or other legal documents, and other rules, mainly the customs and
conventions and usages regulating the government, which have usually not been precisely
formulated and put in writing. Constitutions, whether written or unwritten, will share
common features. They will identify the principal institutions of the state – the executive,
the legislature and the judiciary. In relation to each of these, the constitution will specify
their functions and powers. In addition the constitution will identify the rights and
freedoms of citizens, through a Bill of Rights which operates both to protect citizens and
to restrict the power of the state.
 Constitutions, whether written or unwritten, will share common features.

They will identify the principal institutions of the state – the executive,
A the legislature and the judiciary.
constitution may be written or unwritten. A written constitution is always enacted while

an unwritten Constitution is evolved. A written constitution is one which is framed at a
given time and comes into practice on a fixed date. An unwritten constitution on the other
hand is a result of evolution it is given by history. It is never framed by any Constituent
Assembly. It is based on conventions, customs and statutes that grow over the centuries.
The British Constitution is the best example of an evolved and unwritten constitution.
The strength of a written or enacted constitution is that it is clear and definite. When the
constitution is in the form of a document, people have a clear understanding about the
powers of the government. In a written constitution the rights of the people are secure. In a
federal State like Ethiopia, there are two sets of governments: Federal Government and
State Governments. The written constitution mentions clearly the division of powers
between those levels of government.
The weakness of a written constitution is that it fails to adapt itself to changing conditions
easily. Generally, the process of amending or changing a written constitution is
comparatively complex. It is generally said that written constitution is helpful in providing
solid government, but this viewpoint can also be disputed. For example, England is a well
administered country though its constitution is unwritten.
A written constitution has three important advantages: the first is that a single text
contains the sum of what state authority consists of, how it is constituted, how it can
be used, and what non-violent methods of addressing disputes are to be adopted. This
gives clarity.
The second argument is that such a text can be made available to all inhabitants (and
visitors). The basis of the political system is therefore comprehensible to all, instead
of in the hands of a specialized guardian classes. This is vital when there are to be
dealings between individuals and the State.
The third argument is that because the limits of state power are so clear, it is
necessary to invoke an amendment process, in order to change even a small
component of the constitution.
 A written constitution has three important advantages, i.e. it gives clarity,

can be made available to all inhabitants, and is so clear.
On the
other hand, the disadvantage of written Constitution may be the following: the first is
that, the implementation of a written constitution usually involves interpretation. In some
instances such interpretation leads to dispute between branches of the government. It is
also not possible to absolutely define the extent of devolution of power among different
levels of governance in a country. Further, written constitution is not easily adaptable to
changing circumstances to make this real, written constitutions need to be continuously
amended or modified.
In contrast, one of the major advantage of unwritten constitution is, relatively speaking it
is more flexible. However, it is disadvantageous because there is no single document that
clearly states the fundamental rights and duties of citizens and of governments. In this
case, it would be difficult to quickly determine which aspects of the constitution is
violated and when. Since there is no legal restraint and because it is not accessible to
public, it can easily be distorted or even changed without the consent of the people. As a
result there may arise difference in society regarding which conventions or custom is
acceptable and which is not, since there could exist different conventions and customs in
a country. Because of its inaccessibility, it is nearly impossible to create awareness
through education on the fundamental constitutional rights and freedoms, duties, and
obligations of citizens.
To sum up, a constitution generally called written is one in the form of a document which
has special sanctity. A constitution generally called unwritten is one which has grown up
on the basis of custom rather than of written law. But some times the so-called written
constitution is a very complete instrument in which the framers of the constitutions have
attempted to arrange for every conceivable contingency in its operation. In other cases,
the written constitution is found in a number of fundamental laws which the constitution
makers have either framed or adopted with a view for giving as wide a scope as possible
to the process of ordinary legislation for the development of the constitution within the
framework thus set. It is, of course, necessary to distinguish between written and the
unwritten constitution and, we shall refer to the former as a documentary and to the latter
as a non-documentary constitution.
 A constitution generally called written is one in the form of a document

which has special sanctity. A constitution generally called unwritten is
one which has grown up on the basis of custom rather than of written
law.
Activity: 4
1. Go to Art. (105) of the FDRE constitution, and evaluate whether our
constitution is flexible or rigid?
Rigid or Flexible
What is the difference between rigid and flexible constitution?
Constitutions may also be classified as rigid or flexible. A rigid constitution is one in which
amendment is very difficult, requiring special procedures to be employed before any
changes can be made. Where constitutions were devised by their founders as a complete
statement of arrangements for the future, it will generally be difficult to amend them. For
this reason it is particularly difficult to amend a written constitution: it is ‘rigid’, rather than
‘
flexible’ in nature. The Constitutions of, the United States of America, Switzerland and
Australia are considered as rigid constitutions. On the contrary, a flexible constitution is
one which can be amended easily by an ordinary legislative process. It can be amended
without any special procedure. For example; the Constitution of England is flexible
because any provision can be changed by an act of Parliament.
 A rigid constitution is one in which amendment is very difficult, requiring
special procedures to be employed before any changes can be made.
The
strength of a rigid constitution is that it is a guarantee against quick changes. It is stable,
whereas a flexible constitution is unstable. Moreover, the fundamental rights of the people
and the interests of the minorities are more secure under a rigid constitution. A flexible
constitution, however, is considered progressive in nature and helpful in the development
of the nation as it changes easily and adapts to the changing circumstances. A rigid
constitution, on the other hand, may not be easily changed according to the changing
conditions.
 The constitution which can be altered or amended without any special

machinery is a flexible constitution. The constitution which requires
special procedure for its alteration or amendment is a rigid constitution.
Activity: 5
1. Go to Art. (105) of the FDRE constitution, and evaluate whether our
constitution is flexible or rigid?
Unitary or Federal
What is the characteristics feature of unitary and federal state structure?
Every modern constitution state belongs to one of two great classes: Unitary or Federal
and this introduces of difference of the very first importance. A unitary state is one
organized under a single central government; that is to say, what ever powers are
possessed by the various districts within the area administered as a whole by the central
government, are held at the discretion of that government, and the central power is
supreme over the whole without any restrictions imposed by any law granting social
powers to its parts. Unitarianism in the political sense was the habitual exercise of
supreme legislative authority by one central power. The best example of unitary state is
the United Kingdom. Of course, in the case of the United Kingdom, local government is
strong, but the central government can take all those powers of the local government at
any time.
 In unitary state powers may be devolved to local governments, however,

these powers remain subject to the ultimate control the central
government.
Actually, it is important to distinguish clearly between local government in a unitary state

and state government within a federal state. In a federal state the powers of the central or
federal authority are limited by certain powers. We note, therefore, in a federal state a
distinction of powers between the federal authority and the authorities of the units
forming the federation. This being the case, there must be some authority which
determines this distribution. The authority is the constitution itself.
A federal constitution will state either the rights that are to be retained by the federating
units or the rights that the federal authority takes over. In either case it stands to reason
that neither the ordinary legislature of the individual states nor the legislature of the union
can have the power to alter the constitution without some special means being adopted
for discovering the views of the constituent members. These means in federal country, the
constitution will define which powers are exercisable by the central/federal government,
and which powers are exercisable by the constituent parts of the federation, usually known as
states. In a federal state power is diffused rather than concentrated in any one body. The
constitution has overriding force and any conflicts between the federal government and
state governments will be determined according to the constitution. Clearly, in federal
countries the constitution is seen as a covenant. Thus, the constitution is serving as the
fundamental laws of a country. This is one of the essential characteristics features of a
federal state.
Thus, true federalism shows three clearly marked characteristics: first; the supremacy of
the constitution, by means of which the federation is established; secondly; the
distribution of powers between the federal state and the co-ordinate states forming it; and
thirdly, some supreme authority to settle any dispute which may arise between the federal
and state authorities. Not all states which we call federal states are exactly like this.
Federalism is, in fact has its own unique and as well as common characteristics features.
Those that do not exactly conform to the type of completely federalized state we may call
quaisi-federal states.
It will have been observed that, although we talk of a federal state, we have referred to
the federating units themselves also as states. This is due solely may I say, be short of
language. As soon as a number of states have federated they become constituent parts of
a federal state, and there by cease to be states themselves in the full sense, because, they
have sacrificed some part of that essential quality of a state namely; sovereignty. Thus,
for instance the fifty four/five states which now form the American Union are not
individually sovereign states; the true state here is the Union as a whole. Yet the states
retain a wide legislative power, their legislatures being what we may describe as semi-
sovereign law-making bodies. Again, none of the nine states of our country is a real state.
Ethiopia as a whole is the state, the federating unit are regional states.
From all that has been said, it is clear that we have here a very sound basis for the
classification of modern constitutional states. Even though, as we have seen there are
various kinds of unitary states and different kinds of federal states, no constitutional sate
of today can be entirely outside these two categories.
We might have added here a subsidiary basis of classification under this same head
namely, whether the state is centralized or localized; that is to say whether there is a
strong element of local government within the state or not. In Great Britain, for example,
local government plays a large part in the political life of the community. We mention it
here in order to emphasize the difference between local government and state government
(within a federation), a difference clearly illustrated in the fact that, while a unitary state,
is some what inactive in local government, however, federal countries like Ethiopia has a
very active local government.
 In a federal country, there must be distribution of powers between the

Centre and the State governments. Because it is crucial, without it a
federation cannot exist.
Activity: 6
1. How can a government be legally limited if Constitution is the creation
of government? Discuss
2. How constitution to be interpreted? In terms of literal meaning or the
intentions of their authors, or in terms of the possibly ever changing,
values they express? Explain
3. Does a constitution establish a stable framework for the exercise of
public power which is in some way fixed by factors like the original
meaning or intentions? Reason out
LESSON FOUR: THE ETHIOPIAN CONSTITUTIONAL DEVELOPMENT
Introduction
For a better understanding of the issues and rationale for the present federal system, it is
vital to have a basic understanding of the state and constitutional history of Ethiopia. In
this section you will briefly see the constitutional history of Ethiopia starting from the
traditional constitution to the present FDRE constitution.
Objectives
 evaluate the major achievements of traditional constitution of Ethiopia
 explain the motives of the 1931 Ethiopian constitution
 compare the 1931 and the 1955 revised constitution
 identify the silent features of the 1995 FDRE constitution
4.4.1 Traditional Constitution of Ethiopia
Ethiopia had sophisticated traditional unwritten constitution, which included the major
principles of the monarchy, as well as the exclusive right of the imperial court, the
church, and the nobility. There was constitutionally significant document. The following
are the most prominent constitutionally significant traditional documents.
The Fetha Negest (The law of the Kings)
The basic content of the Fetha Negest was the religious ethics of Christianity, then
common in nearly the whole Christian world. It basically dealt with religious, civil and
criminal affairs. It was used as a traditional law in Ethiopian church starting from 16thc,
depicting the fact by stating that every subject must submit to the authority of the ruler,
since he is appointed by God and God has given them authority; one who opposes the
ruler and rebels against him, rebels against his creator. Thus, it was essentially a codex of
law providing for secular and spiritual and legal provisions rather than a constitution.
Other important documents in the constitutional process are Kebre Negest and Serate
Mengest. The Kibre Negest (the glory of kings), strongly dealt with the legend of a
Solomonic Dynasty and thus served certain political-religious needs of the time in the
constitutional process. Beyond that, it gave the Ethiopian state a legitimizing basis.
Another is Serate Mengeste of the 19thc which deals with administrative protocols within
the government institutions.
Activity: 7
1. Have you heard the legend of King Solomon of Israel and Queen of
Sheba of Ethiopia? Refer some history books and prepare a short report
on the mythology.
It is also important to examine some of the major constitutional philosophy and

foundation of the monarchy. The following are the major principles:
 The Dynastic claim: the legend of the Solomonic Dynasty, disseminated by

church and state, served as a powerful source of legitimization by the
subsequent Ethiopian monarchs. According to this story, the monarchs of the
Axumite Empire were descendants of the “Solomonic Dynasty.”
 The Ethiopian Orthodox Church: since legend of Solomonic Dynasty in the
10th c, Solomonic genealogy and Christianity religion remained the core twin
foundation of legitimacy and unity of the Ethiopian state until 1974. Certainly
the connection between the emperor and the church is strong. The emperor is
not only required to be believer of the ancient Orthodox Christianity, but also to
defend it.
 Male succession of the throne: Kibre Negest established the legitimacy of
Solomonic throne by stating that, ‘no one except the male seed of David, the
son of Solomon the king, shall ever reign in Ethiopia” The exceptions are Yodit,
the usurper of state power of the traditional constitution, and Zewditu, due to
extended regency. In any case, it is clear that the exception in either case proves
the principle.
 The principle of imperial supremacy: as we saw earlier, the Fetha Negest
portrayed the fact that every subject must submit to the authority of the king, as
he is God’s appointee. The kings’ power was considered as personal,
unaccountable and unlimited.
4.4.2 The 1931 Written Constitution
It is important to note that despite the long history of people and state, Ethiopia has little
experience with written constitutions. Similarly the principle of separation of power and
separation of state and religion were odd to Ethiopia’s legal culture. Another notion
which was unfamiliar to the Ethiopia’s legal culture was of federalism.
The coming in to power of Emperor Haile Silasse heralded the period of written
constitution. This era starts with the promulgation of the first written constitution in 1931.
The Constitution, however, was significant not for its liberal traditions but rather for its
symbolic role in providing formal definitions of the relations between the emperor and
the nobility and the administration of the government.
The Constitution can be considered as more of a formal agreement between the monarchy
and the feudal lords. A two chamber parliament was founded, and was given the power to
discuss laws, except those on subjects including government organization, the armed
forces and foreign affairs, which were reserved to the Emperor; the Senate was appointed
directly by the Emperor, and the chamber of Deputies was elected by the nobilities in the
Upper House.
The 1931 Constitution did not bother about problems of ethnic, linguistic and religious
diversity. For the same reason any form of decentralization of government were contrary
to the purpose of the Constitution. Generally, the constitution has two motives:
One of the most important historical goals of the Constitution was to breakdown the
powers of the regional lords by bringing them under powerful centralized state
machinery. This Constitution strengthened the traditional position of the emperor by
weakening the role of nobility. It also marked the culmination of the struggle of
centralization process started by Tewedros II during the 19th C. Thus, consolidation and
centralization of power was the sole motives of the first written constitution.
Secondly, its major purpose was modernization. The entrance of Ethiopia to the League
of nation directed to introduce a series of political reforms on the basis of advices from
the League. Ethiopia was expected to show to the outside world that it is becoming
civilized.
 The 1931 Constitution did not bother about problems of ethnic,
The linguistic and religious diversity. most
interesting and novel aspect of the constitution was its provision for the establishment of a
Parliament of two Houses-the Senate and the Chamber of Deputies. The senate was
composed of members appointed by the Emperor from among the nobility (Mekuanent),
who have for a long time served Him as Princes or Ministers; Judges or high military
officers.
The functions of Parliament as a law-making body were limited. Legislative initiative was
the monopoly of the Emperor though Deputies could ask his permission to deliberate on
subjects suggested by themselves. He could veto any law proposed by the chambers. He
had the right to draw up their procedure and to dissolve them. The work of the Parliament
from its creation to the time of the Italian invasion is very little. The Emperor continued to
issue his own decrees and the reserve of absolute power lay in his hands with the principle
“Divine Rights of Kings”.
 The most interesting and novel aspect of the constitution was its provision
for the establishment of a Parliament of two Houses-the Senate and the
Chamber of Deputies.
4.4.3 The
1955 Revised Constitution
Why Emperor Haile Silasse revised the 1931 constitution after twenty-four years
latter?
On the silver Jubilee of his coronation, Haile Silasse proclaimed the “Revised
Constitution” which outdated the 1931 Constitution. Similar to its predecessor the revised
Constitution solidified the absolutism of the monarchy. The first two chapters were
devoted to the institution of the monarchy, the holiness of the Emperor, His dignity, and
the Solomonic root of the dynasty, etc.
 Similar to its predecessor the revised Constitution solidified the
absolutism of the monarchy.
Apparently, it was the federation of Eritrea (with its liberal constitution) with Ethiopia
which necessitated the revised Constitution. However, this constitution no where
mentions of the federal arrangement. Hence, there was no division and sharing of power
as is the case in the tradition of federal systems. What is clearly neglected in this
Constitution, similar to its predecessor, was the issue of diversity. Due to the Solomonic
monopolization of power all those who did not belong to the line are marginalized and
excluded.
The revised constitution is more than twice as long as its predecessor. It has made
changes either by expanding concepts present in contracted form in the old constitution,
or by breaking new ground. By far the most striking change, was the provision for the
election of the till then appointed members of the Chamber of Deputies. Meanwhile the
veto power of the Emperor is still there.
Moreover, the Emperor can use his power to legislate by decree, under article 92. All the
tax legislation of the first five years of the life of the revised constitution and most other
economic measures have been regulated by decrees.
There is a new ring about the provision regarding the Judiciary, which makes a positive
declaration, that "judicial power shall be vested in the courts established by law and shall
be exercised by the courts in accordance with the law . . ." The courts are "a Supreme
Imperial Court and such other courts as may be authorized or established by law . . .” In
actual fact the Emperor's Chilot still functions. Thus, the new constitution brought Haile
Selassie’s power to better and higher heights, and to consolidate the absolutism of the
monarchy.
Can you mention some of the indicators to say the Emperor has absolute powers?
4.4.5 The PDRE Constitution
February 1974 saw the demise of the oldest Christian monarchy and replaced by military
Marxism. A popular revolution involving peoples from all sections of the society
succeeded in overthrowing the ancient imperial regime.
The Provisional Military Administrative Council otherwise known as the Derge replaced
the monarchy and started to take revolutionary measures immediately. The Derge then
acted as the supreme political organ in the country. After the suspension of the Revised
Constitution the country was run by pieces of legislations and proclamation.
At the peak of this activities the 1987(PDRE) Constitution came, which resurrected the
regional autonomy program initiated by NDR. Accordingly, the country administrative
structure was divided in to 29 regions, few of them given autonomous status. The
Constitution starts by making “the Working People of Ethiopia” owners of the
Constitution. It goes on at the preamble to note the fact that Ethiopia is a multinational
state with various nationalities and diverse communities with essential unity created by
cultural intercourse, migration and commerce. Moreover, the equality, respectability and
development of all languages are clearly asserted with a rather pragmatic concession to
Amharic as the working language of the country.
 The PDRE Constitution starts by making “the Working People of

Ethiopia” owners of the Constitution.
The
Derge Constitution was not aimed at enshrining popular demands for social justice and
democracy because they had already been dealt fatal blows during the first days of its
assumption of power. The constitution was to satisfy the constant demand of the soviet
patrons to legitimize Ethiopia as a socialist state. Indeed, the constitution created the first
republic (PDRE).
In PDRE the organization and functioning of the organs of state is based on the principles
of democratic centralism. The preamble states that all organs of state power, from the
lowest to the highest shall be established by election. Decision of higher organs shall be
executed by lower organs accountable to the higher organs. As per the constitution, all
organs of state mass organizations, and other associations and officials shall observe
socialist legality.
Sovereignty lies on the workers of Ethiopia and exercised through the National Shengo,
Local Shengos they establish by election, and referendum. According to the Constitution
the Shengo was the supreme organ of the state power in the country. Candidates to the
National Shengo were nominated by organs of the Workers' Party of Ethiopia, mass
organizations, military units and other bodies. The terms of the Shengo would be five
years. The members in the Shengo were elected from their electoral districts in the
country. In the absence of opposition party, the National Shengo functioned on the basis
of strict party discipline and socialism.
 In the absence of opposition party, the National Shengo functioned on

the basis of strict party discipline and socialism.
President of PDRE was elected by the National Shengo and answerable to it. He was the
head of state, represented the Republic at home and abroad. His major roles include:
ensuring the implementation of domestic and foreign policy, commander-in-chief of the
armed forces, appoint members of the Defense Council, conclude international treaties,
and perform other roles assigned to him by the National Shengo.
The Council of Ministers was the highest executive and administrative organ of the
PDRE and was accountable to the Shengo and between the sessions of the Shengo it was
accountable to the Council of the State and the President.
The Judiciary branch consisted of the Supreme Court, Courts of Administrative and
Autonomous Units and other courts established by law. President, vice president and
judges of the Supreme Court were nominated by the president and approved by the
Shengo for five years term. Other judges were to be elected and recalled by the Shengos
in the respective levels.
In sum, the PDRE Constitution built a unitary socialist state having no concern of
federalism and insignificant concern for ethnicity. The regime’s policy of solving ethnic
problems provoked massive resistance from ethno-nationalists and regionalists which

finally close the fate of the regime and reshaped the trend in Ethiopian political and
constitutional history.
 The PDRE Constitution built a unitary socialist state having no concern

of federalism and insignificant concern for ethnicity.
4.4.6 The
1991 Transitional Charter
After a long and devastating civil war, the military dictatorship regime that ruled Ethiopia
for more than seventeen years was overthrown by a coalition of liberation forces in May
1991. The new Ethiopian governors, lead by the Ethiopian Peoples Revolutionary
Democratic Front (EPRDF) declared their commitment to a clean break with the past and
the establishment of a new society; a society based on equality, rule of law and the right
to self-determination.
 Ethiopian Peoples Revolutionary Democratic Front declared their

commitment to a clean break with the past and the establishment of a
new society; a society based on equality, rule of law and the right to
self-determination.
Dictated by the various interests advanced by the ethnic based coalition forces and
similar ethnic based political groups, who joined afterwards, the recognition of
Ethiopians ethnic diversity become the central principle of the new regime’s policy. And
this is immediately reflected in the Transitional Period Charter of 1991.
The ethnic based liberation movements came together immediately at a conference and
drafted and approved an interim constitution or otherwise known as the Transitional
Charter. The Charter is a very brief document with only 20 articles. The aspirations
stipulated in its preamble include the guarantee of freedom, equal rights, and self-
determination of all peoples; ensuring peace and stability by bringing an end to all
hostilities, redressing regional prejudices and safeguarding rights of citizens through

democratically elected, accountable government, and rebuilding the country and
restructuring the state.
Interestingly the Charter, despite its briefness, puts a high premium on human rights. This
is manifested in its direct reference to the Universal Declaration of Human Rights
(UDHR) in its Art(1) which states that based on UDHR individual human rights are
respected fully and without any limitation what so ever. In accordance with the aspiration
of the Charter Art(2) give recognition to the right of “Nations, Nationalities and Peoples
to self-determination” there by guarantying their right to a) preserve their identity,
culture, history and language; b) self-administration with fair and proper representation at
the center; and c) independence when the above mentioned rights are “denied, abridged
or abrogated.”
Thus, the Charter, in contrast to Ethiopia’s legal and political tradition, gave an explicit
recognition to the rights of “Nations, Nationalities and Peoples,” and also recognized
their right to secession. This strong assertion to the rights of “Nations, Nationalities and
Peoples” demonstrated the commitment of the new regime towards group rights and
decentralization.
The process of decentralization initiated by the Charter was further elaborated by

National/Regional Self-Government Establishment Proclamation No.7/1992.
Accordingly, 14 National/Regional self-governments, whose boarders were determined,
based on settlement structure of nations, nationalities and peoples were established.
Hence during this period one can say that some degree of federalism has been introduced
even though federalism had to wait until 1995 to appear in the Ethiopia’s constitutional
public speaking.
In general, the Transitional Charter was a break through in many ways, for example as
we have seen it, established devolved administrative units on the basis of ethnic and
linguistic criteria. On the basis of the Charter, fourteen regional governments were
created; Addis Ababa and Diredawa were given autonomy on the basis of political and
population considerations. Each regional government shall have executive, legislative
and judicial power in respect to all matters with in their geographic territory, except such
matters as defense, foreign affairs, citizenship, declaration of state of emergency, national
economic policy and so forth. In any case, decentralization was one breakthrough and the
basis of the political program of the Transitional Government of Ethiopia.
Secondly, the charter granted self-determination up to secession to all Nations,

Nationalities and Peoples of Ethiopia. Article 2 stated that each Nation, Nationality and
People have the right to preserve its identity and have respected, promote its culture and
history. Also recognized was the right to administer its own defined territory and
effectively participate in the central government on the basis of freedom, fair and proper
representation.
Thirdly, the charter allowed the creation of several centers of power and authority.
Indeed, different associations, especially political parties were flourished following the
promulgation of the Charter. Thus, political pluralism is another departure of the charter
from the Ethiopian constitutional tradition.
 The Transitional Charter was a break through in many ways, for

example: it established devolved administrative units on the basis of
ethnic and linguistic criteria; granted self-determination up to secession
to all Nations, Nationalities and Peoples of Ethiopia; and allowed the
creation of several centers of power and authority
4.4.7 The FDRE Constitution
The Constitution of the Federal Democratic Republic of Ethiopia (FDRE) came into force
in August 1995 after passing through drafting and series of deliberations by bodies set up
by the Transitional Government. The text of the Constitution which gives the ownership
of the same to “Nations, Nationalities and Peoples of Ethiopia” established a federal state
by dividing and sharing power between the federal and state governments. Reducing the
number of states recognized by the Transitional Charter by five the Constitution

enumerates nine states constituting Federal Democratic Republic of Ethiopia. Hence,
according to Art. (47) member state of FDRE are the following:

 The State of Tigray
 The State of Afar
 The State of Amhara
 The State of Oromia
 The State of Somalia
 The State of Benshangul/Gumuz
 The State of the Southern Nations, Nationalities and Peoples
 The State of the Gambela Peoples
 The State of the Harari People
Inline with federal traditions the Constitution stipulated two layers of legislative,
executive and judicial organs. Accordingly a parliamentary government is set up at the
federal level with bi-cameral Parliament, the upper chamber is the House of the
Federation and the lower chamber is the House of People’s Representatives. Members of
the upper chamber are elected by the states’ parliamentary assemblies, whereas members
of the lower chamber are elected by popular vote. All recognized national groups are
guaranteed representation in the upper house; representation in the lower chamber is on
the basis of population, with special set-asides for minorities.
Legislative power is vested in the House of People’s Representatives. Also an executive

organ led by a Prime Minister whose office is accountable for the House of Peoples
Representatives (HPR) is set up. The executive branch includes the President, Prime
Minister, Council of State, and Council of Ministers. The president is elected by both
legislative chambers for a six-year term. The leader of the largest party in the lower
chamber becomes Prime Minister, who submits cabinet ministers for the chamber’s
approval. All ministers serve for the duration of the legislative session. Executive power
is in the hands of the Prime Minister, who is also the commander in chief of the armed
forces.
Similarly an independent judiciary with the supreme federal judicial authority vested in
the Federal Supreme Court is established. Likewise, states have the State Council (with
legislative power), State administration (highest organ of state executive) and a judicial
power vested in courts. The judicial branch is composed of federal and state courts. The
Federal Supreme Court is the highest court and exercises jurisdiction over all federal
matters; lesser federal courts hear cases from the states. The president and vice president
of the Federal Supreme Court are recommended by the Prime Minister and approved by
the lower chamber of the legislature.
An institution with the power to investigate constitutional disputes i.e. Council of

Constitutional Inquiry (CCI) is envisaged under the Constitution. Furthermore, the offices
of Auditor General, National Election Board (NEB) and National Census Commission
(NCC) are established by the Constitution. The National Human Rights Commission and
the Office of the Ombudsman are other institutions whose legislative establishment is
envisaged by the Constitution.
In view of protecting the constitutional order and ensuring the sustainability of the
federalism some norms are stipulated as very significant (fundamental) and placed
beyond the reach of governments at both level. These norms will be the subject of the
subsequent discussion.
Fundamental Principles
The Constitution embodied five fundamental principles which relates to sovereignty of

the peoples; supremacy of the constitution; human rights; secularism and transparency
and accountability of government. These principles give a background to many of the
rules that emerge in subsequent chapters thereby setting the framework for a better
understanding and interpretation of the rules.
Sovereignty of the Peoples
Under Haile Silasse’s Constitutions it is to be recalled that sovereignty was vested in the
person of the Emperor. However, the FDRE Constitution unequivocally vests this
sovereignty in “Nations, Nationalities and Peoples of Ethiopia.” By so doing it presumes
the existence of nations, nationalities and peoples who seek sovereignty. This approach of
vesting sovereignty in sub-national units has important implications for the federal
structure. Furthermore, it is part of an expression of their sovereignty that Nations,
Nationalities and Peoples are bestowed with the right to self-determination up to
secession.
Supremacy of the Federal Constitution
In line with the trend of federal systems the FDRE Constitution under Art.9 declares its
supremacy and makes other laws, customary practices and decisions of an organ of a
state or public official null and void if it contravenes the Federal Constitution. This
supremacy clause is in fact a reflection of the principle of sovereignty of the people.
This nature of federal constitutions, asserting its own supremacy, is a matter of necessity
than choice. In the absence of this provision it means that all the states can take any
direction that pleases them to the extent that there will not be any single common
minimum norm binding upon them.
Human Rights
As mentioned earlier, one of the distinguishing characters of the FDRE Constitution from
its predecessors is the emphasis given to internationally recognized human rights norms.
This fundamental principle is stipulated in Art.10 of the FDRE Constitution which
articulates “Human rights and freedoms, emanating from the nature of mankind, are
inviolable and inalienable”. One can thus readily observe that the long lists in the catalog
of rights set out in chapter three of the Constitution are reaffirmation of this principle.
 One of the distinguishing characters of the FDRE Constitution from its

predecessors is the emphasis given to internationally recognized human
rights norms.
Also the principle of human rights seems to be in the background of the political, social,
cultural, economic and environmental policy objectives of the Ethiopian government. The
aspiration to promote sub-national self-rule, rights of equality, especially of ethnic groups
and to ensure the enjoyment of economic, social and cultural rights seems to be a
programmatic statement of the commitment to human rights.
The weight attached to the fundamental principle of human rights is visible not only in
this provision but also in the overriding concern the Constitution extends to rights starting
from its preamble to its amendment clause in Art.104. This extra-careful arrangement
(majority vote in all state legislators, 2/3 majority vote in the HPR, and similar 2/3
majority vote in the HOF) required for the amendment of provisions of chapter 3
pertaining to rights.
Moreover the whole of chapter three, constituting 1/3 of the Constitution is devoted for
human rights and this is a classic evidence to the preoccupation with rights. Of course,
there are several illustrations that prove the degree of importance human rights norms are
given under the Constitution. The mandate given to the HPR to establish Human Rights
commission and the office of the Ombudsman, and to make federal intervention in the
states on the ground of rights violations, the textual fact that the policy objectives
(especially the political; economic, socio-cultural and environmental ones as propounded
in Arts. 88-92) incline toward right protection, taking the fulfillment of most of the rights
as subjects of continuous concern; the need to take extra-caution for rights in the exercise
of emergency powers of the Executive; and the need for extra-care in the amendment of
human rights provisions of the constitution, all testify to the constitution's concern for
human rights, thereby reinforcing the importance of rights as one of the basic principles
of the contemporary constitutional order.
 Moreover the whole of chapter three, constituting 1/3 of the Constitution

is devoted for human rights and this is a classic evidence to the
preoccupation with rights. Of course, there are several illustrations that
prove the degree of importance human rights norms are given under the
Constitution.
Secularism
The FDRE Constitution under Art. (11), explicitly declare the separation of religion from
the state. In spite of the recognition given to religious law system in a restricted manner
the Constitution envisages an entirely secular state in which the state does not interfere in
matters belonging to religion and vise versa. Definitely, the principle of secularism can
be taken as foundational to the right of freedom of religion to religious equality and non-
discrimination based on religion. In view of the ethnic and religious diversity of the
country the adoption of secularism will have a paramount importance in encouraging
religious tolerance to differences.
Transparency and Accountability
It is inscribed in Art.12 of the Constitution as the fifth principle. “The conduct of affairs
of government shall be transparent,” holds, Art12 (1). Moreover it stresses the fact that
“any public official or an elected representative is accountable for any failure in official
duties.” It also reserves the possibility of recalling an elected representative in case of
loss of confidence by the people.
All in all, the Ethiopian constitutional order, as is expressed mainly in its principles and
partly in the preamble and the aspiration provisions of the policy objectives, is one in
which popular sovereignty, constitutionalism, human rights, secularism, and transparency
and accountability of government become visible large.
In general, fundamental rights and duties are one of the important features of the
Ethiopian Constitution. We were denied most of the civil and political rights in our past
history; hence, one of the important aspirations of the people of Ethiopia was that they
should have some basic rights, i.e. right to freedom, right to equality. The FDRE
Constitution provides several fundamental rights. These rights include Right to Equality,
Right to freedom; Right against Exploitation, Right to Freedom of Religion, Cultural and
Educational Rights, and Right to Constitutional Remedies. These Fundamental Rights are
justifiable and are protected by the court. In case of violation of any of these rights one
can move to the court of law and secure them. Of course, some the Fundamental Rights
are not absolute or unlimited. Further, fundamental duties of citizens were also added to
our Constitution. Thus, we have to be aware that, rights are our guarantees given by our
constitution and we are responsible to protect them.
Activity: 8
1. According to the FDRE Constitution there is a transformation from:
 Unitarism to Federalism
 Presidential system to Parliamentary
 Mono-culturalism to Multiculturalism
 Excessive centralism to decentralization
 Rule of men to rule of law
Do you think all this transformations is important for you, your locality,
region and the nation at large? If your answer is yes, in what way? If you
say no, why not?
UNIT SUMMARY
the government. When we say the government of a state, it means basically the executive,
the legislative and the judiciary. In order to make the government effective there has to be
certain rules and principles on the basis and under the authority of which the government
can run the state. This set of principle is called the Constitution. Constitution is the
aggregate of laws and customs under which the life of the state goes on. Government
without a Constitution is a power without a right. On the other hand constitutionalism is
the idea that government can and should be legally limited in its powers, and that its
authority depends on its observing these limitations.
A constitution has distinctive features that distinguish it from any other laws. Some of the
features of a constitution include: generality, permanency, and supremacy. In addition
constitutions have its own principles like: popular sovereignty, separation of powers, rule
of law, of the judicial independence, judicial review and secularism among others.
Constitution is also important to serve as is charter of government, to put limits on the
powers of government and to protection rights of citizen. Constitution is classified based
on the nature of the state i.e. unitary or federal; the nature of the constitution i.e. written
or unwritten and flexible or rigid.
When we see the Ethiopian experience in the development of constitution, Ethiopian had
sophisticated traditional unwritten constitution, which included the major principles of
the monarchy, as well as the privileges of the imperial court the church, and the nobility.
Ethiopia, of course, has little experience with written constitutions. Similarly the
principle of separation of power and separation of state and religion were odd to
Ethiopia’s legal culture. But, during the imperial regime Ethiopia have got its first written
constitution in 1931. On the silver Jubilee of his coronation, Haile Silasse proclaimed the
“Revised Constitution” which outdated the 1931 Constitution. The new constitution
brought Haile Selassie’s power to better and higher heights, and to consolidate the
absolutism of the monarchy.
The revised constitution was suspended when the military Derge took power in 1974. On
there side the military promulgated the PDRE constitution in 1987. The constitution was
to satisfy the constant demand of the soviet patrons to legitimize Ethiopia as a socialist
state. Indeed, the constitution created the first republic.
After a long and devastating civil war, the military dictatorship regime was overthrown
by a coalition of liberation forces in May 1991. Ethiopians ethnic diversity becomes the
central principle of the new regime’s policy. And this is immediately reflected in the
Transitional Period Charter of 1991. The Constitution of the Federal Democratic
Republic of Ethiopia (FDRE) came into force in August 1995 after passing through
drafting and series of deliberations by bodies set up by the Transitional Government. The
text of the Constitution which gives the ownership of the same to “Nations, Nationalities
and Peoples of Ethiopia” established a federal state by dividing and sharing power
between the federal and state governments. The Constitution embodied five fundamental
principles which relates to sovereignty of the peoples; supremacy of the constitution;
human rights; secularism and transparency and accountability of government.
CHECK LIST
Please check your understanding with the following key ideas of the unit.
N0 Decide Yes Need to

Revise first
1 I can describe the distinction between constitution
and constitutionalism
2 I can explain the major characteristics features of a
constitution.
3 I can evaluate the fundamental constitutional
principles
4 I can briefly explain the major purposes and
functions of a constitution.
5 I can trace the historical development of
constitution in the world
6 I can describe the distinction between written and
unwritten; a rigid and a flexible; and unitary and
federal constitution.
7 I can briefly explain the historical forces which
underlie our contemporary constitution in line with
its significance
8 I can identify the essential features of the FDRE
constitution
If you ticked ‘need to revise first’, please go to the sections of the unit you are going
to revise.

Unit Four: Constitution and Constitutionalism

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UNIT FOUR: CONSTITUTION AND CONSTITUTIONALISM

4. CONSTITUTION AND CONSTITUTIONALISM

LESSON ONE: MEANING AND CHARACTERISTIC FEATURES OF

After studying this lesson, you will be able to:

 identify the major characteristics features of constitution

4.1.1 Meaning of Constitution

 Constitution is the fundamental law of a nation or state that establishes

 A constitution is a body of laws that determines the nature of the State.

4.1.2 Meaning of Constitutionalism

 Constitutionalism is thus, the idea that government can and should be

 Constitutionalism is based on the notion of a supreme law which

mechanisms used in exercising the relevant power (e.g., procedural requirements

Furthermore, constitutionalism is a system of political arrangements in which there is a

 Constitutionalism implies also a balance between the power of the

1. Think of any constitution that established by the will of few

4.1.3 Major Characteristic Features of a Constitution

Generality: a constitution provides the general principle of a state and carry on

 Constitution is a supreme law of the land.

4.1.4 Fundamental Constitutional Principles

sovereignty is discussed, the second definition applies, and sovereignty is associated

 Popular sovereignty is refers to the holder of legitimate power, who is

In order to promote accountability of government, hinder corruption and protect the

 Separation of power is designed to protect the people from a

The Rule of Law

 In order to maintain the rule of law, an institution, independent from the

enforced through established procedure and incompliance with international recognized

Independence of the Judiciary

Although judicial independence seems on its face to be an obviously essential

 The independence of the judiciary shall be guaranteed by the State and

Judicial review is another major principle of a democratic constitution. It is a process of

all democracies the task of judicial review, particularly constitutional interpretation, is

Secularism is mostly understood to mean separation of state and religion. Secularism

LESSON TWO: MAJOR PURPOSES AND FUNCTIONS OF CONSTITUTION

After studying this lesson, you will be able to:

4.2.1 Purposes of Constitution

A constitution is charter of government: Government derives its whole authority from

What is the importance of limiting government power?

Put limits on the powers of government and rights protection function:

The constitution is a commitment device: In a democratic state, the constitution binds

The constitution as covenant, symbol, and aspiration: In so far as a constitution is a

 A constitution may serve as a binding statement of a people’s

LESSON THREE: HISTORICAL DEVELOPMENT OF CONSTITUTIONS IN

After studying this lesson, you will be able to:

 discuss the historical development of constitution in the world

4.3.1 The Origin and Development of Constitution

Accordingly, in the modern sense, the US Constitution is considered to be the first

 People who administer their affairs according to traditions and customs

4.3.2 Modern Classification of Constitutions

 As the constitution is the ultimate authority, any action which contravenes

Simply, written and unwritten is a distinction between those rules regulating a

 Constitutions, whether written or unwritten, will share common features.

constitution may be written or unwritten. A written constitution is always enacted while

 A written constitution has three important advantages, i.e. it gives clarity,

 A constitution generally called written is one in the form of a document

 The constitution which can be altered or amended without any special

 In unitary state powers may be devolved to local governments, however,

Actually, it is important to distinguish clearly between local government in a unitary state

 In a federal country, there must be distribution of powers between the