The Status of Human Right Under the FDRE Constitution of Ethiopia

Abstract 

This paper provides an overview of the status of human rights under the Federal Democratic  Republic of Ethiopia (FDRE). Mainly focus on the rights stated in chapter 3 of the  constitution as human rights. The study analyses the constitutional provisions and other  related proclamations related to the effective implementation and interpretation of human  rights. It also conducts an overview of Ethiopian ratification of international human rights instruments and assesses the role of Ethiopian governmental bodies in implementing  international human rights instruments. Challenges and limitations in enforcing human rights treatises are also explored. Additionally, the paper assesses the effectiveness of international  human rights mechanisms in Ethiopia. Finally, the study determines recommendations for  enhancing human rights protection in Ethiopia. The purpose of this article is not to discuss in  detail rather it gives an overview of the status of human rights under the FDRE constitution  and offers some insight.  

Introduction 

Human rights are fundamental rights that we have simply because we exist as humans.  Regardless of our nationality, race, religion, culture, language and other related status, these  rights are inherent to all of human nature. Such kinds of rights have a nature of universality,  inalienability, indivisibility and equality. Since Ethiopia is a country of multinational states, incorporating such rights is significant. At the current time, the 1995 FDRE constitution of  Ethiopia shows significant progress in the incorporation and implementation of human rights in the country. The House of People’s Representatives has ratified a lot of international  human rights instruments and incorporated them into the legal framework of the country.

The  Constitution has 106 articles with 11 chapters and nearly one-third of the provisions of the  Constitution deal with fundamental rights and freedoms.1Chapter 3 of the constitution deals  with such rights, part one of the chapter offers the list of human rights which are guaranteed  by the constitution.2 The constitution imposes a duty and responsibility of respecting and  enforcing the provisions which are stated under chapter 3 of the constitution on the three  government organs (the legislative, executive and judiciary) at both federal and state levels.  

The government also establishes national human rights institutions (human rights commission and ombudsman) to facilitate the effective implementation of international  human rights in the country. Notwithstanding having ratified several international human  rights treaties, there might be difficulties or inconsistencies in how these treaties are applied  and upheld within the FDRE constitution’s legal framework. To find any loopholes or  contradictions that would prevent Ethiopia from realizing its human rights, it is imperative to  examine the current state of international human rights instruments in light of the FDRE  constitution. This objective of this article is the implementation and effectiveness of  international human rights instruments within the legal framework of the FDRE Constitution  and examines how international human rights instruments are implemented and enforced in  Ethiopia. 

Over view of Ethiopian ratification of international human right instrument 

Ethiopia is a member of many international human rights instruments. From the seven  treaties of international human rights Ethiopia is a party of the six. The organ of government  that is responsible for the ratification of the international treaties including international  human rights treaties which are signed by the executive body is the legislative body (House  of people Representative.)3The 1966 two international conventions namely the International  Convention on Civil and Political Rights (ICCPR) and the International Convention on  Economic, Social, and Cultural Rights (ICESCR)ratified by the federal government of  Ethiopia in 1993.4 Chapter 3 of the FDRE constitution shows how these two international  conventions (ICCPR, ICESCR) are incorporated into the legal framework of the  government.5 Ethiopia becomes a member of the United Nations1945. Ethiopia joined the ICERD in 1976 but did not make the declaration under Article 14 that would allow  individuals to submit complaints to the CERD.6It ratified the CEDAW in 1981, but not the  1999 Optional Protocol.7In 1991, Ethiopia joined the CRC, but it has not yet taken any  action with respect to the 2000 Optional Protocols on the sale of children, child prostitution  and child pornography and on the involvement of children in armed conflict. In 1993,  Ethiopia joined both the ICCPR and the ICESCR.8It has not joined the Optional Protocols to  the ICCPR on an individual complaint mechanism (1996) and on the abolition of the death penalty (1989). 9 Ethiopia became a party to the CAT in 1994, but did not make the  declaration under article 22 that would allow individual complaints, nor did it join the 2002  Optional Protocol establishing a system of regular visits.10 Following the ratification of such  treaties, the government of Ethiopia has shown significant progress in the protection and  incorporation of human rights as a legal framework in the country. It also gives extensive  coverage of the FDRE constitution. Once treaties have ratified by the House of people representative those international human rights treaties become an integral part of the  constitution.11 This shows the attention given to such rights by the government of Ethiopia at  the current time. Because of its nature of inalienability such right cannot be taken away from  the subjects by anyone. All human rights that are ratified under the FDRE constitution are  equally important, there is no hierarchy between humans all human rights are equal and  enjoyed by every individual equally. However human rights are not absolute. There are cases  where state may justifiably encroach on the recognized rights of individuals or groups rights.12 The FDRE Constitution and the regional constitutions do not incorporate a general  limitation clause that governs cases where rights may be justifiably limited, however several  internal limitation clauses in relation to most of the rights therein.13 Some of the rights may  be limited by any ‘law’ without any substantive requirement and this creates a danger of lack  of uniformity in the interpretation of the rights and their limitation.14  

The status of human right under the FDRE constitution  

The 1995 FDRE constitution of Ethiopia imposes a duty and responsibility of respecting and  enforcing the provisions which are stated under chapter 3 of the constitution on the three  government organs (the legislative, executive and judiciary) at both federal and state levels .15 The status of international human rights instruments in the Constitution is not clear and it  becomes an issue for academic debate.16 Article 9(1) of the Ethiopian Constitution states the  supremacy of the Constitution. Hence, a literal reading of this provision clearly indicates that  international instruments, which, under Article 9(4), are made an integral part of the laws of the land upon ratification, are subordinate to the Constitution17. Since human rights treaties  are also part of a special kind of international agreement, they should be understood to be  subordinate to the Constitution.18However, the inclusion of the interpretation clause (Article  13/2 in relation to the fundamental rights chapter) has led some scholars to conclude that  international human rights instruments adopted (and not just ratified) have a status higher  than, or at least equal to, Chapter 3 of the Constitution itself.19 It must be emphasized that the  rule contained in Article 13 (2) does not concern the hierarchical rank of human rights  treaties, but is only a rule of construction that regulates how national law is to be interpreted.  20 Most importantly, conformity is required only when there is the need for interpretation  which excludes cases where clear differences exist between the Constitution and international  instruments as well as cases of clear constitutional provisions that merely require the application of the Constitution.21As such, even international human rights instruments have a  status subordinate to the Constitution22.However the requirement of conformation with the  International Convention on human right doesn’t apply on other provisions of the  Constitution that are directly or indirectly related with human right . For example, article 93  of the FDRE constitution that deal with derogation of right, doesn’t need conformity of international convention to be interpreted.23 

Implementation and Enforcement of Human Right in Ethiopia  

The 1995 FDRE constitution of Ethiopia imposed a duty and responsibility of respecting and  enforcing the provisions which are stated under chapter 3 of the constitution on the three  government organs (the legislative, executive and judiciary) at both federal and state levels.24 This shows government organs are responsible for the enforcement of human rights in the  country. However since not all organs of government are involved in the task of adjudication,  there is no chance for them to directly apply chapter three to resolve a dispute. 25 Nevertheless, it is clear that by indirect application, all organs are expected to be mindful of  human rights in all their decisions and actions as they go about discharging their daily responsibilities.26 The legislative organ of government (house of people representative) has the power to establish an institution of human right commission and institution of  ombudsman which are responsible for the implementation of human rights. 27 It has also the  power to select there members and determining to what extent they should have to exercise  their power.28These two institutions can be considered as national human rights institutions.  The Human Rights Commission was established as an autonomous organ of the federal  government and has its judicial personality.29 this institution has the duty to ensure human  rights and freedoms provided under the FDRE constitution are respected by all citizens, organs of the state, political organizations and other associations. It has also the power and  duty of creating awareness in society by using mass media and other means, undertakes an  investigation up on a compliment or its on initiation.30 Despite their importance such  institutions are not working effectively because of different challenges they face.

The judiciary organ of the government is also responsible for the protection of human rights while  adjudicating cases and they need to have a principled approach to the interpretation of legal  texts that embody or implicate human rights.31If the court observes a constitutional dispute  and believe that there is a need for constitutional interpretation in its adjudication of cases, the court should submit to the House of Federation which has the power to interpret a law. When the cases submitted to the House are related to the fundamental rights and freedoms that is incorporated in the constitution, the interpretation shall be made in a manner  conforming to the principle of the Universal Declaration of Human Rights and international  covenants on human rights and international instruments adopted by Ethiopia.32The Ministry of Justice can also be mentioned as an executive organ that is responsible for the  implementation of human rights treaties. Overall this shows how human rights instruments  are enforced and implemented in Ethiopia and also shows how international human rights are  interpreted. 

Challenges to the Full Realization of Human Right in Ethiopia  

The 1995 constitution gives a great place for human rights instruments; one-third of the  constitution states about such human right. The federal government also shows significant progress in the incorporation of human rights instruments on the legal framework of the state.  There are also national human rights institutions established by the government to protect and  implement human rights. Despite the strong efforts of the state, there are still gaps in the  realization of human rights in the country. National institutions tend to be more effective  when they have public legitimacy, are accessible, have an open organization culture, treat  human rights issues systematically, have adequate budget resources, handle complaints effectively, and consult civil society.33 But when we assess the effectiveness of the Ethiopian  national human rights institutions, it lacks;  

• Independency: Such institutions are not free from the influence of politics and government  organs. 
• Inaccessibility and limited awareness of the people about human rights: EHRC is far  from accessibility to the vulnerable section of the community, because there is no “fast track  complaint procedure” in a special way for the most vulnerable.34
• Adequate budget: due to the lack of resources and capacity national human rights institutions in Ethiopia couldn’t perform their duty effectively. To secure true independence of national human rights institutions the budget, should not subjected to any branch of  government interference, if the budget of the commission heavily relies on the government or  NGOs, it may ridden for their interest. High reliance on government funds impedes the  institution from criticizing the wrongful act of the government.35

Case of Tigray in 2020 

Although the constitution of Ethiopia gives a big place for human rights, currently the  country is facing a big challenge of violation of human rights. The conflict between the central government of Ethiopia and the state government of Tigray which occurred in 2020 resulted in a serious violation of international human rights law. Based on the Information  gathered and analysed by the JIT, there are reasonable grounds to believe that the following  major violations and abuses occurred in the context of the conflict:36 Attacks on civilians and  civilian objects, Unlawful killings and extra-judicial executions, Torture and other forms of ill-treatment, Arbitrary detentions, abduction, and enforced disappearances, Refugees,  Restrictions on freedom of movement, Freedom of expression and access to information,  Denial of access to humanitarian relief. Generally, when we assess the effectiveness of the  implementation of international human rights in Ethiopia, despite the incorporation of several  human rights in the legal framework of the country, there are a lot of loopholes and gaps in the implantation and protection of human rights. 

Conclusion 

The research discussed the status of human rights under the FDRE constitution. At the  current time, the 1995 FDRE constitution of Ethiopia shows significant progress in the  incorporation and implementation of human rights in the country. However, the status of  human rights in Ethiopia is not clear in the constitution and this becomes an issue for  academic debate. The House of People Representative has the power of ratify and establish NHRIs in Ethiopia and each government organ of Ethiopia has a duty to respect and  implement human rights in the legal framework of the country. However, there are still gaps  and loopholes in the effective implementation of such rights. These gaps come from a lack of  awareness, accessibility of NHRIS, corruption, lack of accountability and transparency and  other related reasons. Because of such reasons, People are still suffering from violations of  human rights. When we look at the case of Tigray in 2020, there are a lot of human rights that  have been violated due to the conflict between the central government of Ethiopia and the  regional government of Tigray. Based on such premises we can conclude that the government  lacks efficiency in the implementation and protection of human rights in the country.

Recommendation 

To eliminate such loopholes the government needs to take major action on the  implementation and protection of human right by increasing the Capacity of government  organs that are responsible for the protection and implementation of human rights in the  country. Also it is important to consider the following: 

• Increase the accessibility of NHRIs all over the country: since such organizations are  important to facilitate the implementation of international human rights instruments, it is recommended to increase there accessibility.  
• Adopting new law which can clarify the confusion on the 2 articles (Articles 9(1)and  13(2)of the constitution, so that it will become easy to interpret international human  when it is needed. 
• Assuring accountability and transparency of government organs; since government  organs are responsible for the implementation and protection of human rights in  Ethiopia assuring accountability and transparency in such organs will make them perform effectively.

Reference(S): 

Book and Journals 

• Abebe A, ‘Human Rights under the Ethiopian Constitution: A Descriptive  Overview’ (2000)5 Mizan Law Review. 
• Agegnehu A, Dibu W ‘An assessment of Challenges That Impede the Effectiveness  of Ethiopia Human Rights Commission Protection and Promotion of Human  Rights’ (2016) l3 IJETST. 
• Bayeh E, ‘Incorporation of Human Rights into Legal Frameworks of the three  Successive Regimes of Ethiopia and their Treatment: A Comparative Analysis’  (2014)32 European Journal of Humanities and Social Sciences. 
• Brems E, ‘Ethiopia Before the United Nations Treaty Monitoring Bodies’ (2007)20  Afrika Focus. 
• Ethiopian Human Rights Commission (EHRC) and Office of the United Nations  High Commissioner for Human Rights (OHCHR), ‘Report of (EHRC)/(OHCHR)  Joint Investigation into Alleged Violations of International Human Rights,  Humanitarian and Refugee Law Committed by all Parties to the Conflict in the  Tigray Region of the Federal Democratic Republic of Ethiopia’ [2021] 
• Human Rights Commission of Ethiopia, ‘Ethiopia’s Ratification Status of  International and Regional human Right Treaties’ [2022]. 
• Mengist A, ‘The Human Rights Commission of Ethiopia: Challenges and Prospects  in Promoting and Protecting Human Rights’ (2020)10 Developing Country Studies. • Mekuria G, ‘The Status of International Human Rights under the FDRE  Constitution and their Impact on the Protection of Human Rights’[2020]. • Office of United Nation, ‘Assessing the Effectiveness of National Human Right  Institution and Council of Human Right Policy’ [2005] 
• Regass T, ‘Making Legal Sense of Human Rights: The Judicial Role in Protecting  Human Rights in Ethiopia’ (2009)3 Mizan Law Review. 

Legislations  

• Constitution of the Federal Democratic Republic of Ethiopia1995 proclamation  no1/1995. 
• Consolidation of the House of the Federation and the Definition of its Powers and  Responsibilities, Proclamation No. 251/2001. 
• Ethiopian Human Rights Commission Establishment 2000, Proclamation No.  210/2000.

1 Endalcachew Bayeh, ‘Incorporation of Human Rights into Legal Frameworks of the three Successive Regimes  of Ethiopia and their Treatment: A Comparative Analysis’ (2014)32, European Journal of Humanities and Social  Sciences 1739,1744 

2Constitution of the Federal Democratic Republic of Ethiopia 1995 Proclamation No1/1995, arts 14-28

3 Constitution of the Federal Democratic Republic of Ethiopia 1995 proclamation No1/1995, arts55(12)

4 Human Rights Commission of Ethiopia, ‘Ethiopia’s Ratification Status of International and Regional human  Right Treaties’[2022] 1. 

5 Bayeh (n1)1744. 

6 Eva Brems, ‘Ethiopia Before the United Nations Treaty Monitoring Bodies’ (2007)20 Afrika Focus 49,50

7Ibid,51 

8Ibid

9Ibid 

10Ibid 

11 Constitution of the Federal Democratic Republic of Ethiopia 1995,Proclamation No1/1995, arts9(4)

12 Adem Kassie Abebe, ‘Limiting Limitation of Human Rights Under the FDRE and Regional Constitutions’  [2011]81,82. 

13 Ibid 

14Ibid 

15 Constitution of the Federal Democratic Republic of Ethiopia 1995, Proclamation No1/1995.arts13(1)

16 Ibrahim Idris ,‘The Place of International Human Rights Conventions in the 1994 Federal Democratic  Republic of Ethiopia Constitution’ (2000)20 Journal of Ethiopian Law 113, cited on Adem kassie Ababa, ‘Human Rights under the Ethiopian Constitution: A Descriptive Overview’(200l)5 Mizan Law Review 42,47

17 Ibid 

18 Ibid 

19 Ibid 

20 Gizachew Admasu Mekuria, ‘The Status of International Human Rights under the FDRE Constitution and  their Impact on the Protection of Human Rights’ [2020]4,7. 

21 Adem Kassie Abebe, ‘Human Rights under the Ethiopian Constitution: A Descriptive Overview’(200l)5 Mizan Law Review 42,48 

22Ibid 

23 Ibid 

24 Constitution of the Federal Democratic Republic of Ethiopia 1995, Proclamation No1/1995, arts13(1)

25Tsegaye Regass, ‘Making Legal Sense of Human Rights: The Judicial Role in Protecting Human Rights in  Ethiopia’ (2009)3 Mizan Law Review 289,310.

26Ibid 

27 Constitution of the Federal Democratic Republic of Ethiopia 1995, Proclamation No1/1995.arts55(14, 15)

28 Ibid 

29 Ethiopian Human Rights Commission Establishment 2000, Proclamation No. 210/2000 art,3

30 Ibid, art.6 

31 Regass(n25),328 

32Consolidation of the House of the Federation and the Definition of its Powers and Responsibilities 2001, Proclamation No. 251/2001 art.7(2)

33 Office of United Nation, ‘Assessing the Effectiveness of National Human Right Institution and Council of  Human Right Policy’ [2005]1,7-9.  

34 Adane Mengist ,‘The Human Rights Commission of Ethiopia: Challenges and Prospects in Promoting and  Protecting Human Rights’ (2020)10 Developing Country Studies 36,39. 

35 Alene Agegnehu, Worku Dibu ‘An assessment of Challenges That Impede the Effectiveness of Ethiopia  Human Rights Commission Protection and Promotion of Human Rights’ (2016)l3 IJETST 4348, 4835. 

36 Ethiopian Human Rights Commission (EHRC) and Office of the United Nations High Commissioner for  Human Rights (OHCHR), ‘Report of the Ethiopian Human Rights Commission (EHRC)/Office of the United  Nations High Commissioner for Human Rights (OHCHR) Joint Investigation into Alleged Violations of  International Human Rights, Humanitarian and Refugee Law Committed by all Parties to the Conflict in the  Tigray Region of the Federal Democratic Republic of Ethiopia’ [2021]1, 2-5.