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The State of Emergency in Ethiopia:

Compatibility to International Human Rights


Obligations

Bekalu Wachiso

INSTITUTE OF PEACE AND SECURITY STUDIES (IPSS),

ADDIS ABABA UNIVERSITY, ETHIOPIA


Abstracts

This paper examined the constitutional and legal derogations or limitations to which the enjoyment of Human
Rights could be subjected, during a period of a State of Emergency in Ethiopia and explores Ethiopia's
compatibility to International Human rights standards. This paper proceeds as follows; section one covers an
introduction telling all the general issues capturing attention of this paper. Briefly discusses the Ethiopian
method of incorporation of international human rights instruments in to domestic system of law is section two.
As there are no stipulations on how states should implement human rights standards at international level, the
implementation of international human right treaties is dependent on domestic law and entirely left to the states
to decide on how obligations will be implemented. Domestic legal system must provide favorable legislative and
administrative frameworks if treaty based guarantees are to be translated into reality for domestic
beneficiaries. Therefore, I am of the opinion that a countrys compliance or non-compliance and the amount of
enforceable weight it gives to the international law treaties it concludes partly stems from the manner [ whether
in the face of proper legislative and administrative frameworks or domestic legal and procedural loopholes] it
ratifies and incorporates the same. Under section three, I explore constitutionality of the state of Emergency [
On October 9, 2016, the Ethiopian government announced a country-wide six-month state of emergency]
regime in the current Ethiopian constitutional order. This is to shed some light on how state of emergency is
regulated in the Ethiopian constitutional and institutional set up without jeopardizing the non-derogable rights
and freedoms of citizens. The domestic application of international standards of human rights cannot be
assessed in the abstract on the basis of merely studying the provisions of the Constitution. so it must be clear
that absence to offer empirical analysis if not theoretical legal analysis, would be limitation of this term paper.
For example, regarding how courts, national human right institutions and etcetera are handling domestic
application of international human rights instruments is none of our scope here. In the same vein, section four
offers a legal analysis of Ethiopian constitutional and institutional set up regulating state of emergency as to
check whether it accords to the countrys international human rights obligations or otherwise. The final section
in this term paper inserts the last thread in to the eye of the needle and finishes sewing the cloth to be covering
every part of this document. And I am curious enough to see that happen at last.

Key Words: Ethiopia, State of Emergency, Human Rights, International Obligations

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Contents
Abstracts ...................................................................................................................................................... 1
List of abbreviations ................................................................................................................................... 3
SECTION ONE ........................................................................................................................................... 4
Introduction............................................................................................................................................... 4
SECTION TWO .......................................................................................................................................... 6
The Implementation Modes Operandi of International Human Rights Treaties in Ethiopia .................... 6
SECTION THREE...................................................................................................................................... 8
Constitutionality of state of emergency and Human Rights protection in the Ethiopian legal system ..... 8
SECTION FOUR ...................................................................................................................................... 10
Legal analysis of the State of emergency in Ethiopia: a compatibility checks on Ethiopias
International Human rights obligations ................................................................................................. 10
conclusion .................................................................................................................................................. 14

2
List of abbreviations

UN United Nations

ICCPR International Covenant on Civil and Political Rights

HOPR House of Peoples Representatives

FDRE Federal Democratic Republic of Ethiopia

HOF House of Federation

UDHR Universal Declaration of Human Rights

ACHPR African Charter on Human and Peoples Rights

NHRIs National Human Rights Institutions

3
SECTION ONE

Introduction

In common parlance, the state of emergency denotes a legal regime in which public institutions are vested
with extraordinary powers to address existential threats to public order. 1

States of emergency are critically important from a human rights perspective because the suspension of
legal order often paves the way for systematic human rights violations. The same political pressures that
prompt states to declare states of emergency also generate strong incentives for states to violate their human
rights obligations during emergencies. 2

International laws emergency constitutions 3 limits the circumstances under which states may legally
derogate from their international obligations to respect, protect, and fulfil civil and political rights. For the
sake of brevity and scope of this term paper, we choose International Covenant on Civil and Political Rights
(ICCPR),4 and African Charter on Human and Peoples Rights (ACHPR) 5, as international and regional
human rights instruments respectively and also international soft law standards like Siracusa Principles
6
and Paris minimum standards.7 Rakeb opined that one should not underestimate the importance of the
extensive soft law in the field of human rights contained in such instruments as resolutions, declaration,
recommendations, codes of conduct, standard minimum rules, guidelines, basic principles, model treaties
and other instruments. Despite the fact that they are not binding on states, they often express human rights
policy guidelines or provide detailed arrangements for legislative unification of domestic systems. In certain
circumstances, she added, they constitute a first step towards the transformation of their provisions into
hard law in the course of the codification process.8

1 Evan J. Criddle & Evan Fox-Decent, (2012) Human Rights, Emergencies, and the Rule of Law, Human Rights Quarterly 34
(2012) 3987, The Johns Hopkins University Press, p45
2 Ibid, p,46
3 ibid, 45,
4 International Covenant on Civil and Political Rights (ICCPR), adopted 1966; G.A. Res. 2200A (XXI), 21 U.N. GAOR

Supp.(No.16) at 59, U.N. Doc.A/6316 (1966), 999 U.N.T.S. 302, entered into force March 23, 1976. Ethiopia ratified the ICCPR
in 1993. https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf.
5 African Charter on Human and Peoples Rights, adopted 27 June 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 1520 U.N.T.S. 217

(entered into force 21 Oct. 1986) accessed from http://www.humanrights.se/wp-content/uploads/2012/01/African-Charter-on-


Human-and-Peoples-Rights.pdf. on 5/10/2017, Ethiopia ratified the African Charter in 1998.
6 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights

American Association for the International Commission of Jurists available @ http://icj.wpengine.netdna-cdn.com/wp-


content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf. accessed on 5/10/2017
7 Richard B. Lillich:The Paris Minimum Standards of Human Rights Norms in a State of Emergency,American Journal of

International Law October, 1985,Copyright (c) 1985 by the American Society of International Law;
athttp://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/ParisMinimumStandards.pdf. on
5/10/2017
8
Rakeb M. (2002), Enforcement of Human Rights in Ethiopia, Research Subcontracted by Action Professionals
Association for the People (APAP), p,10, Rakeb has been a human rights and gender consultant in the APAP

4
The above human right instruments, including the soft law standards, inter alia, employ a number of
inquiries to evaluate the legality of a states derogation from general human rights standards. For instance,
Evan J. Criddle & Evan Fox-Decent, in their work Human Rights, Emergencies, and the Rule of Law
touches upon two grand questions; first, are circumstances sufficiently dire to justify initiating a state of
emergency? Second, if a state of emergency is justified, what measures may a state employ to address the
emergencys threats to public order? 9

The Ethiopian government is empowered to declare a state of emergency under the constitution 10 and it is
supposed to entertain the above major questions pursuant to the substantive and procedural requirements in
the binding international & regional covenants, and the non-binding 11 if not weak and non-applicable,
international soft law standards.

In doing so, this paper proceeds as follows; section one covers an introduction telling all the general issues
capturing attention of this paper. Briefly discusses the Ethiopian method of incorporation of international
human rights instruments in to domestic system of law is section two. As there are no stipulations on how
states should implement human rights standards at international level, the implementation of international
human right treaties is dependent on domestic law and entirely left to the states to decide on how obligations
will be implemented. Domestic legal system must provide favourable legislative and administrative
12
frameworks if treaty based guarantees are to be translated into reality for domestic beneficiaries.
Therefore, the writer is of the opinion that a countrys compliance or non-compliance and the amount of
enforceable weight it gives to the international law treaties it concludes partly stems from the manner
(whether in the face of proper legislative and administrative frameworks or domestic legal and procedural
loopholes) it ratifies and incorporates the same. Under section three, I explore constitutionality of the state
of Emergency13 regime in the current Ethiopian constitutional order. This is to shed some light on how state
of emergency is regulated in the Ethiopian constitutional and institutional set up without jeopardizing the
non-derogable rights and freedoms of citizens. The domestic application of international standards of
human rights cannot be assessed in the abstract on the basis of merely studying the provisions of the
Constitution 14 so it must be clear that absence to offer empirical analysis if not theoretical legal analysis,

9
Evan J. Criddle & Evan Fox-Decent (2012), Human Rights, Emergencies, and the Rule of Law, Human Rights
Quarterly, The Johns Hopkins University Press, vol. 34, p47
10
Federal Democratic Republic of Ethiopia Constitution, art 93(1)(a).
11
See the explanation given by Rakeb at note 8 on page,1 of this document
12
Liku Worku, Legislative proposals and application of human right treaties in Ethiopia, published on
http://www.abyssinialaw.com/show/itemlist/category/1174-legislative-drafting-blog. accessed on 5/17/2017, Liku
Worku is a founder and administrator of Abyssinia Law. He graduated From Mekelle University with LLB (2007)
and the University of London with a LLM in Advanced Legislative Studies (2012).
13 On October 9, 2016, the Ethiopian government announced a country-wide six-month state of emergency
14 Rakeb M. at note 8 above, p,4

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would be limitation of this term paper. For example, regarding how courts, national human right institutions
and etcetera are handling domestic application of international human rights instruments is none of our
scope here. In the same vein, section four offers a legal analysis of Ethiopian constitutional and institutional
set up regulating state of emergency as to check whether it accords to the countrys international human
rights obligations or otherwise. The final section in this paper inserts the last thread in to the eye of the
needle and finishes sewing the cloth to be covering every part of this document. And I am curious enough
to see that happen at last.

SECTION TWO

The Implementation Modes Operandi of International Human Rights Treaties in Ethiopia

In international jurisprudence, it seems there is no well-established standard as to dictate and govern the
manner how states incorporate international human rights instruments in to their domestic law/national law
or municipal law 15 and enforce them. Liku 16 posits in this regard that there are no stipulations on how
states should implement human rights standards at international level, the implementation of international
human right treaties is dependent on domestic law and entirely left to the states to decide on how obligations
will be implemented. He added, domestic legal system must provide favourable legislative and
administrative frameworks if treaty based guarantees are to be translated into reality for domestic
beneficiaries. On the top of Likus voice, Rakeb opines that regional and international human rights
instruments can only be enforced and be effective where they are ratified and States Parties recognize the
competence of the respective enforcement body. 17

However, the above writers and several others have acknowledged the presence of two general
mechanisms/methods regarding the incorporation of international covenants/treaties into domestic legal
18
system of countries. They dichotomize these mechanisms as monist or automatic incorporation and
19
dualist or legislative incorporation ;

The method of incorporation of international human right treaties in Ethiopia indicate that Ethiopia does
not strictly adhere to one method of incorporation as the Ethiopian constitution provides for both methods.20
To explain this further, we refer to the work by Rakeb arguing, inter alia, that Ethiopia is a monist state

15 Several writers usually use these three terms interchangeably and we employ them accordingly
16 Liku Worku, cited at note 12 above
17 Rakeb M. at note 8, p,13
18 See the article by Liku at note 12
19 ibid
20 ibid

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mentioning the FDRE constitutions provision art.55 (12) which affirms the power to conclude
international agreements is entrusted to the executive. The House of Peoples Representatives (Parliament)
has then to ratify them Once they are ratified, by art.9 (4) on the same constitution, all international
agreements, including human rights instruments, are an integral part of the law of the land. No additional
measure to be taken by the legislature is provided for in the Constitution. However, art.2 (2) of the Federal
Negarit Gazette Establishment Proclamation No. 3/1995 provides that all Laws of the Federal Government
shall be published in the Federal Negarit Gazette, whereas art.2 (3) states that all Federal or Regional
legislative, executive and judicial organs as well as any natural or juridical person shall take judicial notice
of Laws published in the Federal Negarit Gazette. According to these provisions, Ethiopia could be
classified as dualist as a national legislation needs to be promulgated in order for the provisions of
international instruments to be implemented at the domestic level.21

The Bill of Rights in the Ethiopian Constitution, which is modeled on international human rights
conventions, is further subjected to a special interpretative regime, which should comply with principles of
the international law adopted by Ethiopia (art.13 (2)). However, international law is narrowly construed to
cover only the UDHR and those conventions ratified by Ethiopia. In addition, art.9 (1) affirms the
supremacy of the Constitution. It further noted that all laws, which contravene this Constitution, shall be of
no effect. As no additional detail is provided for, it can be argued that where there is an inconsistency
between the provisions of the Constitution and international human rights standards, the former prevails.22

In summary, the debate among theorists and courts regarding Ethiopias method of incorporating
international Law instruments i.e. dualist Vs monist enigmas, hierarchy of the two laws conundrum and
whether publication of a ratified international agreements must be a mandatory requirement for their
enforcement in Ethiopia or not, seems endless and troubling. But this does not mean I am of no position
regarding the debate. As most writers has been discussing, Ethiopias stance seems dualist 23 in procedure
and monist 24in substance. Therefore I share the idea that nothing is more essential to a proper grasp of
international law than a clear understanding of its relation to state law25 and the crux of the problem lies
in the method of Ethiopias incorporation (hanging between the two) which creates a proper legislative
analysis lacuna on the part of the lawmaking body supposed to ratify the international agreements concluded

21 Rakeb, at note 8, p,15


22 ibid
23 See the note by Rakeb about art.2 (2) and 2(3) of the Federal Negarit Gazette Establishment Proclamation No. 3/1995
24 Liku at note 12, says Ethiopia has ratified an international agreement and decided to incorporate it into domestic law that

incorporation seems to be done through a mere ratification proclamation adopting the treaty provisions entirely.
25 JJ stark, 1994, International law, p,63 as cited in Takele S. (2009), The Monist-Dualist Divide and the Supremacy Clause:

Revisiting the Status of Human Rights Treaties in Ethiopia, Vol.23, No.1, Journal of Ethiopian Law, P.134.

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by the executive body.26 And this confusing method eventually creates practical problems. As Liku rightly
put it, nonexistence or lack of awareness because of the confusion created by the poor analysis of
legislative proposals with international human rights treaty provisions and this eventually led drafters and
other officials in legislative drafting process to focus only on constitution and other domestic laws ignoring
compatibility with international obligations.27

SECTION THREE
Constitutionality of state of emergency and Human Rights protection in the Ethiopian legal system

In this section the writers motive is to shed some light on how state of emergency is regulated in the
Ethiopian constitutional and institutional set up in such a way as wisely as possible to the survival of the
democratic constitutional order and safeguarding [both in the institutional and procedural aspects of it] 28
fundamental freedom of citizens. I believe that the significance of political power and keeping the security
of the state is an indisputable concept, but what matters most in this ultramodern age is the extent and
manner of exercising that political power, which is at the epicenter of states raison d'tre 29, to maintain
the security and survival of the state during threat. Gebreabzgi underscores that there is a natural tension
between maintaining a stable political power, and freedom-security, and freedom- in which both are
essential values for the society.30 This section also attempts to touch up on the organs of government with
whom the power to declare state of emergency resides, the requirements that need to be fulfilled for a valid
declaration, and the protections against the abuse of emergency powers.

As we know, in the political history of Ethiopia, a document of 11 chapters and 106 articles, the FDRE
constitution is the fourth written constitution. And the promise to redress past and existing injustices is
vowed in the preamble, the very inception of the constitution next to the page of the proclamation
no.1/1995/.

As far as human and democratic rights provisions are concerned, as Yehenew 31opined nearly one third
of the text of the constitution is devoted to fundamental Human Rights and freedoms. These are categorized

26 See the provision under article 55(12) of FDRE constitution


27 Liku at note 12
28 Gebreabzgi, W. (2011). The Extent of Reason of State in the Ethiopian Constitutional Order: The Quest for Restraining and

Legitimizing, A Thesis Submitted to The School of Graduate Studies, School of Law, Addis Ababa University, In Partial Fulfilment
of the Requirements for The Masters of Laws (LLM) Degree in Constitutional and Public Law. P,13
29 We acknowledge the first thinker who champion this term to be Niccolo Machiavelli (1469-1527), as many would say they owe

him even though he did not use it. Supra note p,15, from Friedrich Meinech, (as cited in Gebreabzgi, W. (2011), p,26)
30 Gebreabzgi at note 30 above, p, 20
31 Yehenew, T.(nd.). State of Emergency and Human Rights Under The 1995 Ethiopian Constitution, pdf. Pp, 79-113 available at

http://www.abyssinialaw.com/researches/category/26-human-right law?download=1398:state-of-emergency-and-human-rights-
under-the-1995-ethiopian constitution. ,pp,103,

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as Human Rights32 and Democratic Rights33 and under article 13(2), Rights and freedoms are to be
interpreted in conformity with the principles of the UDHR, the ICCPR and other international instruments
ratified by the country. However, as Getahun posits, Recognizing human rights and the rule of law and
incorporating those into domestic system of law is never considered as an end in itself. That will have a
meaning when credible and effective institutional mechanisms for promotion and protection are in place.
For those reasons, international and regional human rights treaties consider the principle of effective remedy
as a principle that contributes to the realization of the promise to respect, protect and fulfil human rights.
34

Saving that as it may, regarding with whom the power resides to declare state of emergency, the 1995 FDRE
constitution directly and/or impliedly indicates that Ethiopia exercises both models i.e. Parliamentary and
Executive, of declaring emergency, at least in the steps and approval in the process therein.35

Talking about the non-derogable rights in time of state of emergency, the 1995 FDRE constitution lists out
a number of Human Rights and freedoms not to be suspended 36 even during in such circumstances that
could possibly endanger public safety and social security.37

Regarding constitutional safeguards against abuse of emergency powers, Yehenew argues, the importance
of precise and effective national legislation and effective domestic control mechanisms cannot be
overemphasized.38 The question here is the adequacy of the substantive , and procedural safe guards the
system has provided against abuse taking in to account to the legal status of the emergency decree varies
before, and after its submission to the parliament. The constitution attempts to incorporate some substantive
principles which are help full to safe guard against abuse of state of emergency. 39 Accordingly, various
arguments are entertained regarding the substantive and procedural controlling mechanisms in the

32 See the 1995 FDRE constitution provisions under articles 14-28


33 Ibid, articles 29-43
34 Getahun Kassa (nd.). National Human Rights Institutions in Ethiopia: Roles and Challenges in the Protection of Human Rights,

LL. B, LL.M, PhD Candidate, lecturer at Addis Ababa University, Centre for Human Rights Studies, p, 3
35 As I refer to the works of Gebreabzgi(pp,58-60) and Yehenew (p,104), at notes 30 and 33 above respectively, they define
executive model as when the council of ministers have the power to declare emergency in the manner stated under art.93(1)(a)(b)
of the constitution and the parliamentary model when the decree by the council of ministers requires approval and renewal of the
HOPR so that the emergency decree will continue with force of law.
36 The constitution provides the list of non- derogable rights as provided in Art 93(4)(c) are: the nomenclature of the state as the

federal democratic republic of Ethiopia (art 1); the prohibition against inhuman treatment (Art 18); the right to equality (Art 25);
and the right to self-determination, including the right to secession, and language, culture, and history of the nation, nationality,
and people (Art 39 (1)(2)).
37The circumstances of breakdown of law and order that endangers the constitutional order should be something which cannot be
controlled by the less restrictive measures of the ordinary law. As state of emergency is an exceptional situation, the emergency
measures are to be taken exceptionally as a last resort when possible ordinary law restrictive measures could not avert the crisis.
Gebreabzgi, at note 30 above, p,65
38 Yehenew, p,107 at note 33 above,
39 Gebreabzgi, p,65, cited at note 30 above

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Ethiopian context and particularly the role of the judiciary to check executive acts and decide on the fate of
emergency measures given the fact that the constitution gives the power to interpret the constitution.40 And
the HOF as a political organ is not expected to be independent and impartial institution to dispose
constitutional disputes of emergency laws which involves political issues with an impact on the rights and
freedoms of citizens. 41 And The Constitution provides for the establishment of state of emergency inquiry
board, which has the power, among other things, to inspect and follow up all the measures taken during
state of emergency and ensure the prosecution of perpetrators of inhuman acts.42

In summary, though the argument with divergent views regarding the aforementioned statements seems to
continue, I can say that, in such time of state of emergency in Ethiopia, it is clear that situations that pursue
the declaration claim the national law to give a necessary power to the relevant organ of government, but
without the necessary substantive and procedural mechanisms to control that power so that it will not be
abused by that organ is equally imperative if this country has to comply to its international human rights
obligations. And I dedicate the next section of this paper to entertain issues in that regard.

SECTION FOUR
Legal analysis of the State of emergency in Ethiopia: a compatibility checks on Ethiopias International Human rights
obligations

As I already mentioned under section three, fundamental human rights and freedoms are not absolute.
Rakeb posits that infringement of rights will only be justified as reasonable limitation only if there is a
strong purpose, which is valid in an open and democratic society based on human dignity, equality and
freedom. And she suggests, care should further be taken not to exceed the purpose and infringe rights more
than there is need to..43

All the major international and regional Human Rights instruments, with the notable exception of the
ACHPR, 44 recognize the right of states to suspend Human Rights norms contained therein in cases of

40See FRDE constitution art.84 (2)


41Gebreabzgi, p,70, cited at note 30 above, he argues, the parliament has enacted laws that clearly exclude the courts from the
power to review constitutionality of regulations, and directives which are executive acts in consistent with the spirit of the
constitution. And he mentions The council of constitutional inquiry proclamation No. 250/2001 and the consolidation of the house
of the federation and definition of its powers and responsibilities proclamation No. 251/2001 to substantiate his argument. (see,
p,69)
42 FDRE constitution, art, 93(6)
43 Rakeb M. p,13at note 8,
44 The exception with the ACHPR context is because of the absence of the derogation clause in it. However, Ouguergouz as cited

in the work of Belay, A Critical Analysis of Non-Derogable Rights in A State of Emergency Under the African System: The Case
of Ethiopia and Mozambique, 2005 p,19 argued that the absence of a derogation clause in the ACHPR does not mean that states
cannot derogate from the provision of the ACHPR. He argued that states wishing to derogate might rely on the rules relating
termination and suspensions of treaties by taking into account international law, in particular the Vienna Convention on the Law
of Treaties (VCLT).

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exigencies that threaten the life of the nation, similarly these instruments lay down conditions and
requirements for a valid derogation as well as enumerate certain rights that may not be suspended or
derogated even during gravest circumstances. 45 And the soft law standards; the Siracusa Principles,
although an outcome of a non-governmental conference, contains a valuable reference for the interpretation
of the derogation clause provided in the ICCPR. It reflects a need for the examination of particular
circumstances warranting derogation to effectively implement the rule of law. It clarifies among other
things, the meaning of public threat affecting the life of the nation, proclamation, notification and
termination of state of emergency and non-derogable rights. 46 and The Paris minimum standards are
intended to ensure among other things, that even when a government declares a bona-fide state of
emergency, the basic human rights, continue to be observed and respected.47

And it is clear then that my intention in this section is a legal analysis of Ethiopian constitutional and
institutional set up regulating state of emergency as to check whether it accords or otherwise to the countrys
international human rights obligations under the above international and regional instruments.

Under the Constitution of Ethiopia, international law ratified by Ethiopia is considered to be part of the law
of the land.48 Ethiopia acceded the ICCPR in 11 June 1993 and ratified the ACHPR in 15 June 1998. Hence,
they are considered to be part of the law of the land. 49 however, as we can see from the following
discussions, Ethiopia in its constitutional provisions is showing non conformity to the non derogable rights
in ICCPR.

The FDRE Constitution does not recognize the following non derogable rights under ICCPR; right to life
50
, prohibition of torture 51 , freedom of religion, thought and conscience 52 , the non-imprisonment for
contractual obligation 53, non-retro-activity of criminal law 54 and recognition as a person before the law 55.
The right to life is derogable under the Constitution, as it is not provided in the list of non-derogable rights
of ICCPR. 56The Constitution under article 18 provides that everyone has the right to protection against
cruel, inhuman or degrading treatment or punishment. However, torture, which has, attended the status of

45 Yehenew, p,82, as note 33 above


46 Belay, p,16, at note
47 Richard B. Lillich, p, 79, at note 7 above
48 Article 9(4) of the FDRE constitution
49 However, the Federal Negarit Gazette proclamation no 3/1995 provides that judicial organs to take judicial notice of laws

published in the Negarit Gazette. These instruments have not been translated and published in the Negarit Gazette, Belay p,39 at
note 46 above
50 ICCPR, art.6
51 Ibid, art.7
52 Ibid, art,18
53 Ibid, art.11
54 Ibid.art.15
55 Ibid art.16
56 See the FDRE Constitution, art 93 (4)(b).

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jus cogens or peremptory norms, is not included in this provision or in other provisions of the Constitution.
57
Despite this, the Constitution adds to the list a set of rights that are not enshrined in the ICCPR,
nomenclature of the state, the right to equality, self-determination and prohibition of trafficking in person.
There is no provision both in the ACHPR or the ICCPR that designates nomenclature of the state as a right.
Moreover, trafficking in human being for whatever purpose is prohibited. Unlike the ICCPR, prohibition
of trafficking is a non-derogable right under the Constitution. Although the right to self-determination is
provided under the ICCPR and other human rights instruments, the unconditional right to secede is not
incorporated in the conventions. The ACHPR also provides for the right to self-determination under article
20.58

By the same token, the Siracusa principles and the Paris minimum standards provide a number of principles
as to govern the characteristic and the circumstances under which state of emergency should be declared.
59
First, there should be an exceptional threat threatening the life of the nation. Art 4(1) of ICCPR Provides
that in time of public emergency which threaten the life of the nation. the state parties to the covenant.
may take measures derogating from their obligation under the covenant Secondly, the principle of
proclamation; Art 4(1) of the ICCPR provides that the existence of a public emergency threatening the life
of the nation should first be officially proclaimed before the state party derogates from its obligation in
the covenant. Thirdly, the principle of proportionality, Art 4(1) of the ICCPR provides that the state parties
to the covenant may take measures derogating from their obligationto the extent strictly required by the
exigencies of the situation, in time of emergency. Fourthly, the principle of non-discrimination; the
derogation measures shall apply equally to all persons in the territory where by the state of emergency is
declared without discrimination solely on the grounds of race, color, sex, language, religion, or social origin.
Fifthly, the principle of consistency; the derogation measure by the state parties to the ICCPR shall not be
inconsistent with their obligations under international law as it is provided in Art 4(1) of the covenant. It
refers to the consistency of measures of derogation with the states other international obligation. Sixthly,
the principle of non-derogability of fundamental rights; notwithstanding the state parties have the sovereign
right to take derogation measures from their obligation in the covenant as per Art 4(1) of the ICCPR. And
for these substantive and procedural principles be maintained, the above two soft law standards want to
make sure that every state that assumes or exercises emergency power shall respect the following
institutional and procedural safe guards.60

57 Yehenew, p,107, at note 33 above


58 Belay, pp,34-39, at note 46 above
59 Gebreabzgi, pp 39-40, at note 30 above
60 Ibid, p,42

12
Firstly, the constitution of every state shall define the procedure for declaring state of emergency; whenever
the executive authority is competent to declare state of emergency, such official declaration shall always
be subject to confirmation by the legislature, with in the shortest possible time. Secondly, the judiciary shall
have the power to entertain cases of emergency measures. It shall have the power to decide whether or not
an emergency legislation is in conformity with the constitution, and the particular exercise of emergency
power is in conformity with the constitution and emergency legislation of the state. Thirdly, although the
right to fair and public hearing in the determination of a criminal charge, and the protection against arbitrary
arrest and detention may be subject to legitimate limitations, but states must fulfil some procedural
standards like; all arrests and detentions and the place of detention shall be recorded and made available to
the public without delay, the right to fair and speedy trial, right to presumption of innocence, the right to
free legal assistance, prohibition of double jeopardy and etcetera.61

In a nut shell, I have explored that Ethiopia fulfils principles such as of proclamation. As state of emergency
is an exceptional situation, the emergency measures are to be taken exceptionally as a last resort when
possible ordinary law restrictive measures could not avert the crisis.62 The principle of proportionality is
also provided under the FDRE constitution. 63 And one can see the principle of non-derogability in the same
constitution.64 however, All of the stated rights in the ICCPR/ACHPR, however, are not guaranteed as non
derogable under the FDRE constitution. And Minimum procedural rights of the arrested and the accused
which are fundamental to human dignity, but not necessary to any conceivable emergency crisis are not
also guaranteed in the catalogue of non derogable rights and freedoms in the constitution. It is very essential
for all arrests, and detentions together with the place of detention to be recorded, and made available to the
public without delay.65 In spite of its demand from the perspective of rule of law, and experiences from
66
national and international standards, the FDRE constitution, Yehenew disputes, does not give such
procedural and institutional protection towards persons charged with a criminal offence during emergency.
There is no constitutional guarantee so that the government will not try civilians establishing a military, or
a special tribunal, regardless of its independence, impartiality, and providing of procedural safeguards.
There is no guarantee that the government will not derogate the right of access to court. There is no
guarantee that the government will not derogate the minimum procedural rights of persons detained during
emergency.

61 Ibid, pp,43-44
62 See the FDRE Constitution, art 93 (1)(a).
63 Ibid, Art 93 (4) (b) empowers the council of ministers to suspend the rights and freedoms in the constitution to the extent

necessary to avert the conditions that required the declaration of a state of emergency.
64See the list of non derogable rights at note 38 above
65 Gebreabzgi, p66, at note 30 above
66 Yehenew, pp,107-113, at note 33 above

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Moreover, the judiciary does not have also the power to entertain the constitutionality of emergency laws.
It could not decide whether or not an emergency legislation is in conformity with the constitution; it could
not decide whether or not any particular exercise of emergency power is in conformity with the
constitution.67

conclusion

So as to solve the lingering turmoil around both jurists, officials and courts regarding Ethiopias unclear
position concerning the two renowned models of domesticating international human rights instruments, I
argue that the problem is not for the country to be monist or dualist, but in the way immediate and direct
enforceability of legally binding international human rights standards may be facilitated. Implementation
must be made in a clear legal procedure so that it avoids ambiguities and keeps a proper balance of power
and separation of the seemingly overlapping responsibility between the law making and enforcing bodies
of the government regarding the activities of drafting, ratifying and publication of international legal
instruments vis a vis national laws.

I have seen that the declaration of emergency and the resultant derogation of human rights has been the
normal form of exercise of state of sovereignty. This is due to the fact that states at some period face up
some form of emergencies that threatens the life of the nation. In such situations it will be necessary for
states to take required measures to safeguard the life of the nation. These measures, however, may derogate
basic human rights recognized under the different International human rights instruments and a couple of
soft law principles and standards if not binding as well as the constitutions of states.

In addition to the governing norms and principles countries use as a precondition to justify the need to take
emergency measures and giving power to the concerned organ, a proper institutional and procedural
mechanisms of checking and necessary control against a possible abuse of emergency powers is also vital.
And Ethiopias case is not an exception and it is a country allegedly accused by organizations like Human
Rights Watch and Amnesty International of rampant violations of Human Rights to happen not only during
state of emergency scenarios, but also under normal circumstances. By and large, status of international
instruments in general and human rights instruments in particular in the Constitution is not definite and is
subject to academic debate. For instance, as in the work of Getahun that mentions inter alia, international
reports on the Ethiopian National Human Rights Institutions Human Rights protection practice, we can
easily witness that the above accusation is not made from a bad faith. Let me quote Getahun verbatim;

67 The FDRE Constitution Art 83(1) states all constitutional disputes shall be decided by the HOF as cited in Gebreabzgi, p67, at
note 30 above

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The recommendations stemmed from the assumption that the institutions still need to implement
more works to become compliant to the Paris Principles and that there are evidences of human
rights violation in the country. 68 In the same article, after mentioning the NHRIs challenges
such as; credibility, accessibility and etcetera, Getahun has concluded suggesting; It is thus for
the institutions to earn credibility through independent and effective performance. Answer to this
is publishing independent human rights reports; seek redress for violations identified or at least
advocate for redress; take steps to guarantee access and enhance pluralism. Regrettably the
institutions do not have much to show on this.69

68 Getahun, k., p,26, as cited at note 36 above


69
ibid

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