On-line version ISSN 1609-073X
Afr. hum. rights law j. vol.8 n.2 Pretoria 2008
Sisay Alemahu Yeshanew
Researcher and Doctoral Candidate, Institute for Human Rights, Abo Akademi University, Finland
Making human rights domestically justiciable by clearly defining their content and subjecting them to judicial and quasi-judicial mechanisms of enforcement is important for their effective protection. Although a legal framework for the justiciability of human rights exists in Ethiopia, the judicial practice reveals some problems. Lawyers and courts tend to avoid invoking and applying human rights provisions in the Constitution of the Federal Democratic Republic of Ethiopia and ratified international human rights treaties which form part of the law of the land. There is confusion regarding the mandate of the House of Federation to 'interpret' the Constitution. Procedurally, the basic laws of the country limit 'standing' in human rights litigation to those with a vested interest, failing to make public interest litigation possible and hence limiting the justiciability of rights. The article examines the justiciability of human rights in Ethiopia from a substantive, jurisdictional and procedural perspective. It juxtaposes law and practice in an attempt to show the extent to which rights are justiciable in the Ethiopian legal system.
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* LLB (Addis Ababa), LLM (Human Rights and Démocratisation in Africa) (Pretoria); firstname.lastname@example.org
1 See, eg, S Liebenberg 'The protection of economic and social rights in domestic legal systems' in A Eide et al (eds) Economic, social and cultural rights: A textbook (2001) 55-84. [ Links ]
2 F Viljoen 'National legislation as a source of justiciable socio-economic rights' (2005) 6 ESR Review 7. [ Links ]
3 Constitution of the Federal Democratic Republic of Ethiopia, Proclamation 1/1995. [ Links ]
4 Arts 55 & 9 Ethiopian Constitution.
5 Such ordinary legislation to give effect to constitutionally-protected rights and their justiciability are not usually questioned. Legislation regulating aspects of civil and political rights includes the Proclamation to Establish the Procedure for Peaceful Demonstration and Public Political Meeting 3/1991, the Mass Media and Freedom of Information Proclamation 590/2008 (amending the Press Law Proclamation 34/92), the Broadcasting Service Proclamation 533/2007, and the Proclamation to Make the Electoral Law of Ethiopia Conform with the Constitution of the Federal Democratic Republic of Ethiopia 111/1995 (amended by Proclamation 438/2005). The Revised Family Code (Proclamation 213/2000) was adopted to replace the family law provisions in the 1960 Civil Code of Ethiopia (Proclamation 165/ 1960), which were found inconsistent with the constitutional right to equality of women, and to give effect to arts 34 and 35 of the Constitution, which provide for marital, personal and family rights, and the rights of women respectively. While the newly adopted Criminal Code (Proclamation 414/2004) protects various aspects of the rights of individuals (including the right to life, bodily integrity, the right to property, etc) by making certain conduct punishable, the 1961 Criminal Procedure Code of Ethiopia, which is also under revision, provides for the rights of accused and detainees. Among economic, social and cultural rights there is legislation governing such rights as the right to work (Labour Proclamation 377/2003), the right to housing and land (Proclamation Providing for the Expropriation of Urban Lands and Extra Houses 47/1975; Condominium Proclamation 370/2003; Expropriation of Landholdings for Public Purposes and Payment of Compensation Proclamation 455/2005; and Urban Land Lease Holding Proclamation 272/2002), and the right to health (Public Health Proclamation 200/2002; HIV/AIDS Prevention and Control Council and the HIV/AIDS Prevention and Control Office Establishment Proclamation 276/2002; and Drug Administration and Control Authority Proclamation 176/99). There are also proclamations adopted to regulate environmental rights (Environmental Protection Proclamation 295/2002; Environmental Pollution Control Proclamation 300/2002; and Environmental Impact Assessment Proclamation 299/2002). The Civil Code of Ethiopia also enshrines provisions relating to all categories of rights.
6 Arts 14-44 Ethiopian Constitution.
7 The basis for the distinction between human and democratic rights is not clear from the Constitution, neither is one able to draw a conclusive basis of distinction from the nature of rights and freedoms listed under these categories. However, art 10 of the Constitution and some commentators indicate that human rights and freedoms emanate from the nature of mankind and democratic rights and are those which are 'conferred' upon their beneficiaries or holders in a democratic system. A close look at the rights listed under the latter heading shows that the distinction is artificial in that they include rights classically defined as human rights. This fictitious categorisation also does not affect the justiciability debate as the relevant provisions of the Constitution refer to them by the general name 'fundamental rights and freedoms'.
8 As different from the requirement for the amendment of other provisions, art 105 requires the approval of the majority in all state councils, and a two-third majority of the House of Peoples' Representatives as well as that of the House of Federation for the amendment of the provisions of the Constitution on fundamental rights and freedoms.
9 S Yeshanew 'The constitutional protection of economic and social rights in the Federal Democratic Republic of Ethiopia' journal of Ethiopian Law (forthcoming). [ Links ]
10 Arts 85-92 Ethiopian Constitution.
11 See the Constitution of Ireland (1937), art 45, and the Constitution of India (1949/1950), arts 36-51. The Supreme Court of India turned the principles to justiciable guarantees by reading them with the fundamental rights. In two cases (Mohini Jain v State of Karnataka (1992) 3 SCC 666, AIR 1992 SC 1858 and Unni Krishnan JP v State of Andhra Pradesh (1993) 1 SCR 594, AIR 1993 SC 2178) which concerned the right to education, the court held that fundamental rights and DPSP are complementary because what is fundamental in the governance of the country could be no less significant than that which was fundamental in the life of an individual. Note that the Ethiopian Constitution does not say that the principles and objectives are non-justiciable.
12 Art 37 of the Constitution shows that the institutional aspect of justiciability includes institutions with judicial power other than proper courts of law. In one case, the Federal Supreme Court interpreted the article as including organs such as the National Electoral Board of Ethiopia in respect of its jurisdiction to decide on electoral complaints. See National Electoral Board v Oromo Federalist Democratic Movement, Appeal File 21387, judgment 27 September 2005.
13 For a detailed discussion on the Ethiopian approach to constitutional review, see YT Fessha 'Judicial review and democracy: A normative discourse on the (novel) Ethiopian approach to constitutional review' (2006) 14 African journal of International and Comparative Law 53-82; [ Links ] A Fiseha 'Federalism and the adjudication of constitutional issues: The Ethiopian experience' (2005) 52 Netherlands International Law Review 1-30. [ Links ]
14 In a workshop (Training of Judges, organised by the Federal Supreme Court in cooperation with USAID, Summer 2001, Adama, Ethiopia) in which this author took part, most judges of the Oromiya Regional State took the position that arts 83 and 84 of the Constitution in effect debar them from directly applying constitutional provisions, especially when the constitutionality of a law or decision is in issue. See also Fessha (n 13 above) 79-80 (observing that there is a practice of shying away from considering the provisions of the Constitution, including those in the bill of rights even when parties invoke them); and T Regassa 'State constitutions in Federal Ethiopia: A preliminary observation' (2004) 3 http://www.camlaw.rutgers.edu/statecon/subpapers/regassa.pdf (accessed 27 April 2007). [ Links ]
15 Council of Constitutional Inquiry Proclamation, Proclamation 250/2001, Federal Negarit Gazeta 7th Year 40, 6 July 2001. See also Proclamation to Consolidate the House of the Federation of the Federal Democratic Republic of Ethiopia and to Define its Powers and Responsibilities, Proclamation 251/2001, Federal Negarit Gazeta, 7th Year 41, 6 July 2001. [ Links ] According to arts 6 and 17 of Proclamation 250/2001, the power of the Council is to investigate constitutional disputes (including disputes relating to the constitutionality of laws) and submit recommendations to the House of Federation if it finds that it is necessary to interpret the Constitution. These articles as well as art 21 indicate in essence that for the mandate of the Council to be invoked, there should be an issue that necessitates constitutional interpretation in the first place. For an argument that both courts and the House of Federation should have the power to decide on the constitutionality of laws and decisions, see Fiseha (n 13 above) 19-22. (This author fails to address the issue of whether there should be a need to 'interpret' specific constitutional provisions (for lack of clarity or some other reason) for the jurisdiction of the House of Federation to come into the picture).
16 See art 21 Proclamation 250/2001 (n 15 above). The court forwards only the legal issue that, it considers, needs to be interpreted and keeps the case pending before it for final decision after receiving the authoritative interpretation of the House of Federation.
17 Federal Courts Proclamation, Proclamation 25/1996, Federal Negarit Gazeta 2nd Year 13, 15 February 1996.
18 Coalition for Unity and Democracy v Prime Minister Meles Zenawi Asres, Federal First Instance Court, File 54024, decision 3 June 2005.
19 Proclamation 3/1991, Negarit Gazeta 50th Year 4, 12 August 1991. The plaintiff based its case on art 3(1) of the Proclamation that provides for the right of any individual to organise and participate in peaceful demonstration and public political meeting and art 11 of the same which declares any law, regulation, directive or decision that violates the Proclamation null and void.
20 The Federal High Court dismissed an appeal against the decision to refer the case to the Council of Constitutional Inquiry as an interlocutory order.
21 See n 15 above. The Supreme Court of the Amhara Regional State has demonstrated in one exceptional case that an issue of constitutionality of a law should not necessarily be referred to the Council of Constitutional Inquiry. In State v Haile Meles & Another (Supreme Court of Amhara Regional State, File 21/90, decision 1998 (1990 EC)), the defence argued that the Criminal Procedure Code of Ethiopia is unconstitutional in as far as it denies bail for suspects accused of crimes that entail imprisonment for 15 years or more. The Court decided that the contested provision (art 63) of the Code was not unconstitutional because the right to bail under art 19(6) of the Ethiopian Constitution has clear exceptions.
22 In justifying the punishment of a lawyer accused of criticising the court's decision (in a newspaper opinion piece) in the same file.
23 Of course, CUD has alternatively argued that the decree of the Prime Minister is in violation of art 30(1) of the Ethiopian Constitution, which provides that 'everyone has the right to assemble and to demonstrate together with others peaceably and unarmed, and to petition', and hence shall be of no effect based on art 9(1) of same.
24 Council of Constitutional Inquiry, decision taken on a regular meeting of 14 June 2005 - the date when the contested ban expired (on file with author).
25 The Council framed two issues for its consideration: (1) whether the decree issued by the Prime Minister was in violation of the Constitution; and (2) who decides as to whether there are sufficient circumstances to issue such a decree. It picked up the argument of CUD that the decree shall be of no effect as it is in contravention of art 30(1) of the Ethiopian Constitution. It reproduced the article and attempted to interpret its provisions in an effort to settle the matter rather than indicate the way they should be interpreted by the court that referred the matter to it. The Council criticised the submission of CUD as relying on only part of art 30(1) - the statement of rights - leaving out the possible limitations that may be imposed in the interest of public convenience or for the protection of democratic rights, public morality and peace during a meeting or demonstration. But the Council itself left out the specific and explicit circumstances in relation to which regulations may be made, namely, the location of open-air meetings and the route of movement of demonstrators. Surprisingly, the decree which was finally found by the Council to be constitutional is a total ban without any reference to location and direction of demonstrations and meetings. In dealing with the issue, the Council referred to the constitutional provisions which define the powers of the Prime Minister, the status of Addis Ababa and the Charter of the City and then came to the decision that the responsibilities of the Prime Minister to respect the Constitution and follow-up and ensure the implementation of laws and policies adopted by the House of Peoples' Representatives make the decree constitutional. It also found that it was up to the Prime Minister to decide whether there were sufficient circumstances to justify issuing the decree.
26 House of Federation of the Federal Democratic Republic of Ethiopia, 1st term 5th year, Minutes of Extraordinary Meeting, Addis Ababa, 7 July 2000 (on file with author). The representative of the Council of Constitutional Inquiry submitted recommendations on two issues of constitutionality which were referred to it by the House of Federation itself (which received them from the sources first) and the latter took a final decision. One of the cases concerned the compatibility of the electoral law (art 38(1)(b) of Proclamation 111/87) that requires candidates to know the language of the region in which they compete for election, with art 38 of the Ethiopian Constitution which provides that every Ethiopian national has the right to vote and to be elected without any discrimination based among others on language. While the majority in the Council decided that the electoral law is unconstitutional as it discriminates based on language, the House upheld the dissenting opinion of two members of the Council that the language issue should be seen in the context of the general principles on which the Constitution is based and in light of the provisions of the whole Constitution, and came to the conclusion that the electoral law is not unconstitutional.
27 Organisation for Social Justice in Ethiopia & 13 Others v National Electoral Board of Ethiopia Federal High Court, File 38472, Addis Ababa, judgment 3 May 2005. (The author has taken part in the preparation of the application submitted to the court that followed the above-mentioned litigation strategy); National Electoral Board of Ethiopia v Organisation for Social Justice in Ethiopia & 13 Others, Federal Supreme Court, Appeal, File 19699, judgment of 11 May 2005; and Ethiopian Human Rights Council v National Electoral Board of Ethiopia, Federal High Court, File 38890, Addis Ababa, judgment 12 May 2005.
28 Coalition for Unity and Democracy v National Electoral Board, Federal High Court, Addis Ababa, judgment 10 June 2005. The court in effect upheld the submission of the Coalition that the Board had violated the Constitution (referred to in general terms) in announcing provisional results for polling stations in relation to which the former has complaints pending before it.
29 Proclamation Governing the Administration of the Office of Both the Former and Current Presidents, Proclamation 255/2001. Art 7 obliges the President to avoid partisan political movement during or after presidency; art 13 provides for benefits; and art 14 empowers the Speakers of the two Houses to jointly decide on termination of benefits of former President if he fails to respect obligations imposed by the Proclamation.
30 Dr Negaso Gidada v the House of Peoples' Representatives and the House of Federation (Former President's case), Federal First Instance Court, File 54654, Addis Ababa, judgment 5 August 2005. The court argued: 'Even if the former President ran as an independent candidate, if eventually elected, his role would make him partisan as he votes on either side of the issues that arise and hence the termination of his benefits under the Proclamation was not illegal.' The court failed to appreciate that members of parliament voting on one side may belong to political parties with diverse agenda in which case the independent member's vote may not be associated with that of members of any single political party.
31 Dr Negaso Gidada v the House of Peoples' Representatives and the House of Federation, Federal High Court, Appeal, Addis Ababa, judgment 4 January 2006. The court said that it had the mandate to interpret the provisions of Proclamation 255/2001 in light of the Constitution and international treaties ratified by Ethiopia. After mentioning that the vote of a member of parliament is an expression of his opinion rather than support for those who vote in the same side and that the appellant was not elected by people who organised themselves as political party, the court held that the former President had not violated his obligation to avoid partisanship and hence the decision of the Speakers of the respondents was illegal and of no effect.
32 House of Peoples' Representatives and House of Federation v Dr Negaso Gidada, Federal Supreme Court, Appeal, Files 22980 & 22948, judgment 25 October 2006. The court startlingly argued that those who take seat in the House of Peoples' Representatives, which is the highest political organ of the state, are politicians with certain partisan political positions and that the announcement of their political agenda (and their difference with that of others) during their campaign makes the movement partisan even if one is an independent candidate.
33 R Messele Enforcement of human rights in Ethiopia (2002), Action Professionals' Association for the People (APAP) 39 http://www.apapeth.org/Docs/ENFORCEMENT OF HR.pdf (accessed 24 April 2007) (observation of some judges and advocates). [ Links ]
34 In State v Dr Taye Wolde Semayat & Others (Federal High Court, File 4780/88, 5 August 1996), eg, the court observed that it is against the Constitution to deny a detainee his right to communicate with counsel. In many states (eg South Africa) constitutional rights have been applied by courts in specific cases.
35 Ethiopia has acceded to: the Convention on the Prevention and Punishment of the Crime of Genocide (1 July 1949); the International Convention on the Elimination of All Forms of Racial Discrimination (23 June 1976); the International Covenant on Economic, Social and Cultural Rights (CESCR) (11 September 1993); the International Covenant on Civil and Political Rights (CCPR) (11 June 1993); the Convention on the Elimination of All Forms of Discrimination against Women (10 October 1981); the Convention on the Rights of the Child (13 June 1991); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (14 March 1994); the African Charter on Human and Peoples' Rights (15 June 1998); and the African Charter on the Rights and Welfare of the Child (27 December 2002). [ Links ] See http://www2.ohchr.org/english/bodies/ratification/index.htm and http://www.achpr.org/english/_info/index_ratifications_en.html (accessed 18 April 2007).
36 Ethiopia follows the monist tradition where international treaties become an integral part of national law upon ratification. For a discussion on the monist/dualist distinction and the fallacies involved therein, see F Viljoen International human rights law in Africa (2007) 530-538. [ Links ]
37 It is worth noting also that where a constitutional dispute relating to the fundamental rights and freedoms enshrined in the Constitution is submitted to the Council of Constitutional Inquiry, it shall interpret the provision in question in a manner conforming to the principles of the Universal Declaration, international covenants on human rights and international instruments adopted by Ethiopia. See art 20(2) Proclamation 250/2001 (n 15 above).
38 Art 55(12) Ethiopian Constitution.
39 n 17 above.
40 n 31 above. See also the first decision in the trial of officials of the previous regime for genocide, namely, Special Prosecutor v Col Mengistu Hailemariam & 173 Others, Federal High Court, Criminal File 1/87, decision 9 October 1995 (instruments referred to include the Universal Declaration, the Convention on the Prevention and Punishment of the Crime of Genocide and the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment).
41 S Yeshanew Protection of the right to housing and the right to health in Ethiopia: The legal and policy framework (2006) Action Professionals' Association for the People (APAP) 23 (conclusion reached after interviews with judges and advocates of the various levels of courts in Ethiopia). [ Links ]
42 See Messele (n 33 above).
43 F Coomans 'Some introductory remarks on the justiciability of economic and social rights in a comparative constitutional context' in F Coomans (ed) Justiciability of economic and social rights: Experiences from domestic systems (2006) 7; [ Links ] and Viljoen (n 36 above) 533.
44 See M Scheinin 'Direct applicability of economic, social and cultural rights: A critique of the doctrine of self-executing treaties' in K Drzewicki et al (eds) Social rights as human rights: A European challenge (1994) 73. [ Links ]
45 Miss Tsedale Demissie v Mr Kifle Demissie, Federal Supreme Court Cassation Division, File 23632, judgment 6 November, 2007.
46 Federal Court Proclamation Amendment Proclamation 454/2005, Federal Negarit Gazetta, Year 11, 42.
47 See, eg, Convention on the Rights of the Child Ratification Proclamation 10/1992 and Proclamation to Provide for Accession to the African Charter on Human and Peoples' Rights, Proclamation 114/1998.
48 The Committee on the Rights of the Child has expressed its concern about the failure to publish the full text of the Convention in the official gazette. See Concluding Observations of the Committee on the Rights of the Child: Ethiopia CRC/C/15/Add 144 (31/01/2001) para 14.
49 Most international human rights treaties were ratified or acceded to by the transitional government of Ethiopia between 1991 and 1994. While ratification instruments were deposited with the UN and hence the treaties bind Ethiopia, their ratification was not published in the official gazette, let alone their full texts.
50 Proclamation to Provide for the Establishment of the Federal Negarit Gazeta, Proclamation 3/1995, 22 August 1995, art 2. Incidentally, regional states have different official gazettes of their own.
51 Messele (n 33 above). (Several interviewed judges believe that the provisions of the Proclamation establishing the gazette hinder the application by courts of the international human rights treaties.)
52 Proclamation 25/1996 (n 17 above) art 3(1). Art 6(1)(a) also states that federal courts shall settle cases or disputes submitted to them on the basis of federal laws and international treaties.
53 See Vienna Convention on the Law of Treaties (adopted in 1969 and entered into force in 1980), Treaty Series Vol 1155 331, arts 26 & 27.
54 Proclamation to Provide for the Establishment of the Human Rights Commission, Proclamation 210/2000, 4 July 2000. It is also worth noting that art 1(5) of the Proclamation defines 'human right' as including fundamental rights and freedoms recognised under the Constitution and those enshrined in the international treaties ratified by Ethiopia.
55 Proclamation to Provide for the Establishment of the Institution of the Ombudsman, Proclamation 211/2000, 4 July 2000.
56 Art 9 of both Proclamation 210/2000 and Proclamation 211/2000.
57 In 2007/2008, the Commission received 301 complaints out of which it managed to investigate and dispose of 272 - the remaining 29 are pending. Interview with Mr Paulo's Firdissa, head of Human Rights Education and Research Department, on 31 July 2008. From August 2007 to April 2008, the Ombudsman received 1315 cases (492 house and land possession cases, 316 employment dispute cases, 95 social security cases, 369 'partiality and unlawfulness' cases, and 43 related cases) by 11 549 complainants out of which decisions and appropriate measures have been taken on 1073 of them - the rest are pending. Interview with Tigist Fisseha, legal expert of the Institution, on 30 July 2008.
58 As above.
59 As above.
60 The Civil Procedure Code, Decree 52 of 1965. This Code defines the procedure for all types of civil cases in court unless otherwise provided by the specific legislation providing for a particular right.
61 Art 38 of the Civil Procedure Code governing class actions in civil cases provides: 'Where several persons have the same interest in a suit, one or more of such persons may sue or be sued or may be authorised by the court to defend on behalf or for the benefit of all persons so interested on satisfying the court that all persons so interested agree to be so represented.'
62 See Civil Procedure Code (n 60 above) arts 57-64.
63 The Federal Courts Advocates Licensing and Registration Proclamation 199/2000.
64 As above, art 10. The other requirements are: not receiving any kind of reward from a section of society; having a suitable character for shouldering such responsibility; not being convicted; and sentenced for an offence showing improper conduct.
65 The maiden trial of APAP, a local NGO of lawyers, to secure a Special Advocacy Licence as an organisation failed. The Ministry of Justice demonstrated in this application that it would rather issue a licence for individual staff of NGOs who fulfil the requirements set by art 10 of Proclamation 199/2000 and actually licensed two employees of APAP.
66 Art 22(1) of both proclamations provides: 'A complaint may be lodged by a person claiming that his rights are violated or, by his spouse, family member, representative or by a third party.'
67 Proclamation 300/2002.
68 Art 11(2) Proclamation 300/2002.
69 Proclamation 299/2002.