This chapter presents the core concepts of constitution, democracy, and human rights. It explores their fundamental meanings, examines major theoretical arguments and interpretations, and provides practical examples drawn from Ethiopia and other contexts.
Upon successful completion of this chapter, students will be able to:
Class Discussion:
How would you define the term 'constitution'?
The word 'constitution' can refer to the fundamental makeup of various entities (a body, trade union, political party). In a political context, it specifically refers to the constitution of the state. Over time, the term has acquired a normative dimension, often implying a 'democratic political order.'
The idea that every state *should* have a constitution and that its government *should* operate according to constitutional rules to ensure the rule of law is central to the concept of constitutionalism.
Figuratively, a constitution is the fundamental or basic law of a state. It outlines the state's structure, lists citizens' rights, and defines the limits on governmental power. It serves as the foundational blueprint in the hierarchy of laws within constitutional systems. More formally, it's a collection of principles regulating the powers of government, the rights of the governed, and the relationship between them.
A constitution can also be defined as the body of rules and laws (whether written or unwritten) that determines the organization of government, distributes powers and functions among various governmental organs, and regulates the relationships between these organs, as well as between the state and its individual citizens, establishing the general principles for exercising power.
As the supreme law of the land (the "mother of all laws"), all other ordinary laws derive from and are subordinate to the constitution. Any law conflicting with constitutional provisions is typically rendered void or invalid.
Class Discussion:
How is a constitution similar to or different from other types of laws?
Most constitutions share common elements, often taking the general form of a contract or agreement between rulers and the ruled, establishing limitations on rulers in exchange for governance and stability.
Beyond this, constitutions possess distinctive features setting them apart from ordinary laws:
A. Generality:
A constitution provides the general principles and foundational framework for the state, law, and government. Unlike ordinary laws that detail specific subjects, constitutional principles serve as broad guidelines. Constitutional law announces principles; other laws apply or implement them in specific areas. Its generality allows for elasticity through interpretation, enabling it to accommodate evolving societal needs and questions over time.
B. Permanency (Endurance):
Constitutions are intended to endure for an indefinite period, providing stability and continuity. Unlike ordinary laws, which might be temporary or address specific, transient issues, constitutions aim to establish lasting principles resistant to fleeting political moods or events.
C. Supremacy:
Constitutions stand at the apex of the legal hierarchy. They define the procedures for making all other laws and take precedence over them. As the 'mother law,' a constitution is the original source of governmental power and authority, often derived directly from the will of the people ('popular sovereignty'). All other laws are secondary or derivative.
D. Codified Document:
Most modern constitutions are written down, typically in a single, systematic document ('codified'). The fact that constitutions usually include processes for amendment acknowledges they aren't intended to be perfect or immutable, allowing for orderly change rather than forceful overthrow when updates are needed.
E. Allocation of Powers:
A crucial function is outlining the proper relationships between state institutions (legislative, executive, judicial branches) and between the government and its citizens. Constitutions allocate powers and functions to government organs and specify the corresponding rights and duties of both government and citizens—defining who can do what, to whom, and under what conditions.
Brainstorming question:
What are the fundamental purposes and functions served by a constitution?
Constitutions serve several prominent purposes:
We, the Nations, Nationalities and Peoples of Ethiopia:
Strongly committed, in full and free exercise of our right to self-determination, to building a political community founded on the rule of law and capable of ensuring a lasting peace, guaranteeing a democratic order, and advancing our economic and social development;
Firmly convinced that the fulfilment of this objective requires full respect of individual and people’s fundamental freedoms and rights, to live together on the basis of equality and without any sexual, religious or cultural discrimination;
Further convinced that by continuing to live with our rich and proud cultural legacies in territories we have long inhabited, have, through continuous interaction on various levels and forms of life, built up common interest and have also contributed to the emergence of a common outlook;
Fully cognizant that our common destiny can best be served by rectifying historically unjust relationships and by further promoting our shared interests;
Convinced that to live as one economic community is necessary in order to create sustainable and mutually supportive conditions for ensuring respect for our rights and freedoms and for the collective promotion of our interests;
Determined to consolidate, as a lasting legacy, the peace and the prospect of a democratic order which our struggles and sacrifices have brought about;
Have therefore adopted, on 8 December 1994 this Constitution through representatives we have duly elected for this purpose as an instrument that binds us in a mutual commitment to fulfil the objectives and the principles set forth above.
Brainstorming Question:
Can you think of different ways constitutions might be categorized or classified?
Constitutions can be classified using various criteria. Common classifications are based on: form (written/unwritten), amendment procedure (rigid/flexible), degree of implementation (effective/nominal), and state structure (federal/unitary).
1. Written Constitution
A written constitution is one where most fundamental principles and rules are codified within a single formal document or a set of documents. It results from a deliberate effort to establish the framework of government and rights. Examples include the constitutions of India, Kenya, Ethiopia, USA, Germany, Brazil.
Merits:
Demerits:
2. Unwritten Constitution
An unwritten constitution lacks a single, codified document containing all fundamental rules. Instead, it comprises a combination of written laws (statutes), judicial decisions, customs, conventions, and traditions developed over time. The British constitution is the primary example.
Merits:
Demerits:
B. Based on Ease of Amendment:
Constitutions are also classified by the difficulty of their amendment procedures.
1. Rigid Constitution
A rigid constitution has a difficult amendment process, distinct from the procedure for passing ordinary laws. This often requires special majorities (e.g., two-thirds or three-quarters) in the legislature, approval by regional units in a federation, and/or approval by the people through a referendum. Examples include the constitutions of the USA, Australia, and Switzerland. Rigidity aims to protect fundamental principles from easy change.
2. Flexible Constitution
A flexible constitution has a simple amendment procedure, often the same as or similar to that for passing ordinary legislation (e.g., simple or absolute majority in parliament). It adapts easily to changing circumstances. The constitutions of the UK and New Zealand are examples.
C. Based on Degree of Practice:
This classification considers the relationship between constitutional rules and actual government practice.
1. Effective Constitution:
An effective constitution is one where government actions and citizen practices generally correspond to the constitution's provisions. The constitutional rules effectively constrain government behavior, establishing genuine constitutionalism.
2. Nominal Constitution:
A nominal constitution exists on paper but fails to limit government behavior in practice. The text might describe limits, but these are not respected. The constitution has primarily symbolic or "paper" value; constitutionalism is absent.
D. Based on State Structure:
Constitutions establish the basic structure of the state, particularly regarding the vertical distribution of power between central and regional/local levels. This leads to classifying constitutions as federal or unitary.
1. Federal Constitution:
A federal constitution divides sovereign powers between a central (federal) government and constituent regional units (states, provinces). Each level typically has constitutionally guaranteed areas of authority. Examples include the USA, Canada, Australia, Germany, Ethiopia.
2. Unitary Constitution:
In a unitary system, constitutional authority is concentrated in the central government. Lower levels of government (regional, local) exist but derive their powers from, and can be altered or abolished by, the central government. They lack constitutionally guaranteed autonomy. Examples include the UK, France, Japan.
Class Discussion:
What is the difference between having a constitution and practicing constitutionalism?
Constitutionalism is more than just having a constitution; it's the doctrine or belief that government power *should* be limited by law, typically enshrined in a constitution, and that government should operate according to these limitations. It embodies the idea of limited government under the rule of law, where both citizens and officials are bound by established legal rules, protecting citizens' rights from arbitrary state action. While nearly all states have a constitution document, constitutionalism exists only where the constitution effectively limits government power in practice. It checks the legitimacy of government actions against pre-determined legal standards.
Despite Ethiopia's long history as a state, its experience with formal, written constitutions is relatively recent, beginning in 1931. Prior to this, however, the country was governed by unwritten constitutional principles and several significant traditional documents. The absence of a single codified constitution did not mean a complete lack of foundational rules.
From the 13th to the early 20th century, the Ethiopian Orthodox Church played a key role in legitimizing monarchical rule. Foundational documents, often developed within the Church, outlined rights, obligations, and structures, serving as precursors to modern constitutions. Key among these were the *Kebra Nagast* (Glory of Kings), the *Fetha Nagast* (Law of Kings), and the *Ser'ate Mengist*.
Fetha Negest (Law of the Kings):
Compiled in the 13th century (likely by Coptic scholar Ibn al-Assal), the *Fetha Negest* served for centuries as a comprehensive code encompassing religious, civil, criminal, and constitutional law. Drawing from the Bible, Church canons, and possibly Roman law elements, it provided the legal foundation for government and administration. It vested absolute power in the king, reinforcing the concept of the divine right of kings (power derived directly from God) and hereditary succession.
Kibre Negest (Glory of Kings):
Completed in the early 14th century, this national epic documented the mythical origins of the Ethiopian royal house, tracing it back to King Solomon and the Queen of Sheba through their son Menelik I. It established the "Solomonic" lineage as the basis for legitimate rule, stipulating that Ethiopian monarchs must descend from this line. The *Kibre Negest* served as a primary source of legitimacy for the monarchy for centuries.
Ser’ate Mengist:
This 19th-century document provided administrative directives and protocol, allocating power among the Crown, dignitaries, and the Church. While not a comprehensive constitution, it represented an early attempt to formalize aspects of governance and succession, though succession often remained contested in practice.
Traditional legitimacy in Ethiopia rested on force, religion (Orthodox Christianity), and tradition (Solomonic lineage, reflected in imperial titles like "Conquering Lion... King of Kings"). The era of unwritten constitutionalism formally ended with Emperor Haile Selassie's promulgation of Ethiopia's first written constitution on July 16, 1931.
This constitution reinforced the Emperor's traditional supreme authority (Article 6: "supreme power rests in the hands of the emperor") while legally consolidating power, marking a step towards centralizing the state and reducing the traditional power of the regional nobility.
Both internal and external factors motivated the 1931 Constitution.
Externally: Growing interaction with the West and a desire to present Ethiopia as a 'modern' and 'civilized' state, particularly after joining the League of Nations, spurred the adoption of a formal constitution, modeled partly on Japan's Meiji Constitution (which also emphasized imperial authority). It aimed to enhance Ethiopia's international standing, though its impact was limited.
Internally: The primary goal was to provide a legal framework for centralizing power in the hands of the Emperor and suppressing the influence of powerful regional nobles. The constitution declared the Emperor the sole source of legitimate authority, consolidating the absolutist rule Haile Selassie was establishing. This centralization process, however, alienated many regional actors.
Class Discussion:
What factors might have necessitated the revision of the 1931 constitution in 1955?
The post-World War II era brought significant changes. The Italian occupation (1935-41) weakened the Church and traditional aristocracy. Emperor Haile Selassie, restored to power with British aid, further consolidated central authority. Simultaneously, global shifts (like the formation of the UN) and the rise of independence movements in neighboring African colonies (often establishing democratic institutions) created external and internal pressures for reform. Younger, educated Ethiopians increasingly demanded modernization. The federation with Eritrea (which had its own UN-influenced, more liberal constitution) also highlighted the outdated nature of the 1931 document.
Promulgated a quarter-century after the first, the 1955 Revised Constitution aimed to modernize Ethiopia's legal framework while largely preserving imperial power. Key aspects:
However, these liberal elements were largely overshadowed by retained imperial prerogatives. The Emperor remained head of state and government, appointed officials, and maintained judicial oversight through the Crown Court (*Chilot*). In practice, the Emperor's power remained largely absolute despite the revised constitutional structure.
Following the 1974 revolution that overthrew the monarchy, the Dergue regime (a military junta) ruled Ethiopia largely by decree. This period (1974-1987) lacked a formal constitution. The Dergue undertook radical changes, including nationalizing land and major industries.
Seeking to legitimize its rule and transition to a civilian (though single-party) system, the Dergue established a constitutional commission. This led to the adoption of the 1987 Constitution of the People’s Democratic Republic of Ethiopia (PDRE). This constitution represented a significant ideological shift from its imperial predecessors.
Key Features of the 1987 PDRE Constitution:
Despite these changes on paper, the 1987 constitution, in practice, concentrated power within the WPE and the state apparatus, maintaining an authoritarian system.
Class Discussion:
What are the key differences between the 1995 FDRE Constitution and the 1987 PDRE Constitution?
Adopted after the overthrow of the Dergue regime, the 1995 Constitution of the Federal Democratic Republic of Ethiopia (FDRE) marks another significant departure. It establishes a federal structure based on ethno-linguistic groupings and enshrines a comprehensive catalogue of human and democratic rights, occupying roughly one-third of the document (Articles 13-44). It explicitly distinguishes between individual human rights and group-oriented democratic rights. Key fundamental principles include popular sovereignty (vested in Nations, Nationalities, and Peoples), constitutional supremacy, sanctity of human rights, secularism, and government accountability (Articles 8-12). A defining feature is its explicit mandate (Article 13) to interpret fundamental rights in conformity with international human rights instruments ratified by Ethiopia, notably the UDHR and major covenants.
Question for discussion:
How do you define democracy?
Literally meaning "rule by the people" (from Greek *demos* - people, and *kratos* - rule/power), democracy signifies a system where political power ultimately resides with the populace. Abraham Lincoln famously described it as "government of the people, by the people, for the people"—implying government originates from the people, is exercised by them (directly or indirectly), and aims to serve their interests.
Modern definitions often emphasize processes and institutions. Dictionaries define it as government where people hold ruling power, directly or through elected representatives, embracing principles like equality and freedom. Joseph Schumpeter (1943) offered an influential procedural definition: an "institutional arrangement for arriving at political decisions in which individuals acquire the power to decide by means of a competitive struggle for the people's vote." This highlights competitive elections and accountability of rulers to the ruled as core components of modern representative democracy.
Lincoln's definition hints at two core democratic ideals:
Democracy can also be viewed as the institutionalization of freedom—a system of principles, procedures, and practices centered on protecting human and democratic rights. This involves constitutional government, respect for rights, equality before the law, and mechanisms for accountability.
Distinguishing forms based on participation:
Democratic rulers differ from non-democratic ones primarily by *how* they gain power and how they are held accountable. For modern representative democracy to exist, certain procedural minimums are generally required. Robert Dahl (1982) outlined widely accepted criteria:
Meeting these procedural requirements, along with substantive respect for rights and constitutional limits, is crucial for genuine democracy.
Exercise:
Democracy is more than just institutions; it rests on underlying values, attitudes, and practices, which may vary culturally but share common principles. Key elements distinguishing democratic systems include respect for fundamental rights and freedoms, fair elections, citizen participation, equality, rule of law, separation of powers, democratic pluralism (acceptance of diverse groups/ideas), and a multi-party political system.
Exercise:
Besides the elements listed above, what other principles do you consider fundamental to democracy?
Three core values are central to democratic theory: liberty/freedom, justice, and equality.
Liberty/Freedom:
Includes:
Justice:
Encompasses fairness in several senses:
Equality:
Key notions include:
A. Popular Sovereignty
This core democratic principle holds that ultimate political authority resides with the people (the citizens as a whole). Government derives its legitimacy from the consent of the governed, typically expressed through regular, free, and fair elections where citizens choose representatives. Popular sovereignty implies the people retain the right to hold officials accountable and, ultimately, to peacefully alter their government or constitution if it fails to serve their interests or respect their rights.
Within representative democracy, popular sovereignty often manifests as majority rule, meaning that decisions made by the majority (within constitutional limits protecting minorities) prevail. Philosophically, Locke emphasized sovereignty originating from individual consent, while Rousseau stressed the "general will" or common good of the population as the basis of sovereignty, potentially superseding individual rights in his conception. Modern democracies typically blend these ideas, recognizing popular consent expressed through representation as the source of legitimate power. The FDRE Constitution explicitly affirms this in its Preamble ("We the Nations, Nationalities and Peoples...") and Article 8.
B. Constitutional Supremacy and Limited Government
This principle establishes the constitution as the highest law of the land, taking precedence over all other laws and governmental actions. It embodies the idea of limited government—where governmental power is defined and constrained by constitutional rules. All state organs derive their authority from the constitution and must act within its bounds.
Any law or action conflicting with the constitution is deemed invalid. This supremacy reflects the idea that the constitution represents the direct will of the sovereign people, which overrides the actions of their representatives or government officials. Article 9 of the FDRE Constitution explicitly establishes constitutional supremacy.
C. Rule of Law
The rule of law means that everyone, including government officials, is subject to and governed by the law, not by arbitrary will. It requires laws to be clear, publicly known, stable, applied equally, and adjudicated impartially through independent institutions (like courts). Key aspects include:
D. Secularism
Secularism generally refers to the separation of state institutions and religious institutions. In a democratic context, it typically means the state should remain neutral regarding religion, neither establishing a state religion nor prohibiting the free exercise of religion by individuals and groups. This protects freedom of conscience and prevents religious discrimination by ensuring the government doesn't favor or disfavor any particular belief system. Government actions should be based on secular reasoning accessible to all citizens, not specific religious doctrines. Article 11 of the FDRE Constitution establishes Ethiopia as a secular state.
E. Separation of Powers / Checks and Balances
This doctrine advocates dividing core governmental functions (legislative - making laws, executive - implementing laws, judicial - interpreting laws) among distinct branches. This division aims to prevent the concentration of excessive power in any single body, thereby protecting liberty and promoting accountability. Each branch can often 'check' the power of the others (checks and balances). Federalism, which divides power vertically between national and regional governments, can further reinforce this principle.
F. Free, Fair, and Periodic Elections
Democratic legitimacy relies on the ability of citizens to choose and replace their leaders through regular elections. These elections must be:
G. Majority Rule, Minority Rights
Democracy operates on the principle of majority rule (decisions based on the preference of the larger number). However, this is balanced by the crucial protection of minority rights. The majority's decisions must respect the fundamental rights and freedoms of individuals and groups in the minority, preventing tyranny of the majority.
H. Protection and Promotion of Human Rights
Respect for inherent human dignity and fundamental rights is a cornerstone of democracy. Democratic governments are obligated not only to refrain from violating rights but also to actively protect and promote them for all citizens.
I. Multi-party System / Political Pluralism
Democracy generally requires the existence of multiple, independent political parties that can compete freely for power. This provides voters with meaningful choices, fosters debate on policy alternatives, allows for organized opposition to hold the government accountable, and reflects the diversity of interests and opinions within society.
Question for Reflection:
What does the process of 'democratization' entail?
Democracy is not static but dynamic; democratic practices evolve. Democratization refers to the complex process through which a society moves towards a more democratic political system. This typically involves transitions from authoritarian or non-democratic regimes towards systems incorporating democratic principles and institutions.
Key elements often include:
Democratization is an extended process involving the institutionalization and effective functioning of democratic ideals. It represents a significant political transformation, moving beyond mere formal structures to embed democratic practices and values within society.
Political parties are widely considered central to modern democracy ("party democracy"). They organize political competition, aggregate interests, formulate policy alternatives, and recruit political leaders.
In democratic systems, parties provide structure: the majority party (or coalition) forms the government, while opposition parties scrutinize government actions and offer alternatives. Parties act as crucial intermediaries, linking citizens' demands and preferences to the governmental process. A strong, viable opposition is essential for holding the ruling party accountable. Parties also play a role in educating citizens about democratic processes and mobilizing participation.
Mass media play a crucial role in democratic societies and democratization processes. A free, independent, and responsible media is often seen as indispensable for democracy.
Key democratic functions of the media include:
Studies generally show a strong correlation between press freedom and indicators of democracy, good governance, and human development. A free press empowers citizens and constrains potential abuses of power.
Civil society refers to the realm of organized social life that is voluntary, open, self-generating, largely self-supporting, autonomous from the state, and bound by a legal order or shared rules (Larry Diamond, 1999). It encompasses a wide array of non-governmental organizations (NGOs), associations, interest groups, civic movements, religious organizations, and educational institutions concerned with public matters.
CSOs play numerous vital roles in democratization and democratic consolidation, particularly in diverse developing countries like Ethiopia:
Questions for Discussion:
Question for Reflection:
How would you define 'human rights'? What core ideas come to mind?
Human rights are fundamental entitlements considered inherent to all human beings simply by virtue of their humanity. They apply universally, irrespective of nationality, ethnicity, gender, religion, or any other status. Understanding human rights is crucial to recognizing our status both as individuals and as members of the global human community.
The core idea is that every person possesses inherent dignity and worth, which grounds certain fundamental claims or entitlements. These rights are often termed 'natural' rights, suggesting they are not granted by states but belong to individuals inherently. While definitions vary, human rights represent minimum standards necessary for a life lived with dignity.
Class Discussion:
Whose responsibility is it primarily to ensure human rights are respected and protected?
The Universal Declaration of Human Rights (UDHR) affirms these rights belong to everyone "without distinction of any kind" (Article 2). Being human is the sole criterion for possessing human rights. Formally, human rights are often defined as justified claims individuals and groups can make upon others or society (especially the state) for the protection of their fundamental interests and freedoms.
Human rights establish minimum standards for a life worthy of human dignity. They empower individuals by guaranteeing freedoms (choice, expression, political participation) and providing the means to satisfy basic needs (food, housing, education, healthcare). They protect individuals against abuse by more powerful actors, ensuring life, liberty, and security. The UN states human rights enable the full development and use of human qualities like intelligence, talent, and conscience.
Human rights are not merely abstract ideals but recognized standards holding governments accountable. They rest on core principles:
Question for Reflection:
Are you familiar with these principles? Can you explain briefly what universality or inalienability means in the context of human rights?
Universality:
Human rights apply equally to everyone, everywhere, regardless of location, culture, or time. UDHR Article 1 states: “All human beings are born free and equal in dignity and rights.” Article 2 prohibits distinction based on race, color, sex, language, religion, political opinion, origin, property, birth, etc. While universal application is the principle, cultural context might influence how rights are expressed or prioritized, leading to ongoing debates (universalism vs. cultural relativism).
Inalienability:
Rights cannot be taken away, surrendered, or lost because they are inherent to human dignity. They are essential for living a life worthy of a human being, not mere privileges granted under certain conditions. You possess them simply because you are human.
Indivisibility and Interdependence:
All human rights—civil, political, economic, social, and cultural—are equally important and interconnected. The full enjoyment of one right often depends on the realization of others. For instance, the right to life is threatened without rights to health, adequate food, and security. The right to political participation is hindered without rights to education and freedom of expression. Rights cannot be hierarchically ranked or selectively fulfilled; they form an integrated whole necessary for human dignity.
Equality and Non-discrimination:
All individuals are equal by virtue of their inherent human dignity. This principle prohibits any distinction, exclusion, restriction, or preference based on grounds like race, color, sex, language, religion, political opinion, national or social origin, property, birth, disability, sexual orientation, or other status, which impairs the equal enjoyment of human rights.
Possessing rights entails responsibilities towards others and the community. Individuals must exercise their rights with due regard for the rights of others (e.g., freedom of speech doesn't justify defamation). Realizing rights depends on a social and legal order that respects them.
States bear the primary responsibility for respecting, protecting, and fulfilling human rights. This obligation is central to the mission of the UN and enshrined in numerous international treaties. National institutions are crucial for implementation.
The FDRE Constitution reflects this commitment. Chapter Three (Articles 13-44) details fundamental human and democratic rights, consistent with international standards like the UDHR. Article 13 mandates interpreting these constitutional rights in line with ratified international instruments. Article 9(4) affirms that international agreements ratified by Ethiopia form an integral part of the law. The constitution assigns all levels of government the duty to respect and enforce these rights provisions.
Modern human rights norms evolved from long struggles against oppression (slavery, tyranny, genocide, discrimination). While philosophical roots go back centuries, contemporary human rights law largely developed after WWII, formalized through international and domestic law since the UDHR (1948).
Timeline of Key International Human Rights Instruments (Adoption Dates):
(* Precursors / National Documents)
Understanding any right involves identifying two key actors:
The State is generally considered the primary duty bearer for most human rights within its jurisdiction. However, depending on the specific right, individuals, communities, corporations, and international organizations can also bear duties.
Exercise:
For each right listed below from the FDRE Constitution, identify the primary rights holders and the primary duty bearer(s):
Effective human rights realization depends on a cyclical relationship: rights holders claim their rights, and duty bearers (primarily the state) discharge their obligations to respect, protect, and fulfill those rights. Accountability mechanisms are essential for this cycle to function.
Figure 1: Duty-bearer / Rights-holder Relationship
Question for Reflection:
What different categories or types of human rights can you identify?
Human rights are often categorized for analytical purposes, though it's crucial to remember their indivisibility and interdependence. A common classification uses "generations."
Often called "first generation" rights, these emerged primarily from 17th-18th century struggles against absolutism. They focus on protecting individual liberty from state interference and ensuring participation in civic and political life.
These rights are generally considered immediately realizable, meaning states are expected to respect and protect them without delay, regardless of resource levels. They are often termed 'negative' rights because their fulfillment primarily requires the state to *refrain* from interference (e.g., not censor speech, not torture). However, the state also has a positive duty to *protect* these rights from infringement by third parties (individuals, groups).
Emerging later, often associated with socialist and social-democratic thought, these rights concern material well-being, social equality, and cultural identity.
These are often called 'positive' rights, suggesting they require active state intervention and resource allocation for their fulfillment. Their realization is considered progressive, meaning states should strive towards achieving them to the maximum of available resources, acknowledging that immediate full realization might depend on economic capacity.
Critique of Positive/Negative Distinction: Many argue this dichotomy is overly simplistic. Protecting 'negative' civil/political rights (e.g., fair trial, voting) also requires significant positive state action and resources (courts, police, electoral commissions). Conversely, fulfilling 'positive' economic/social rights also requires respecting negative freedoms (e.g., right to form trade unions). All rights have both positive and negative dimensions.
Economic, Social, and Cultural (ESC) rights have sometimes been considered "less fundamental" or harder to enforce legally (less justiciable) than civil and political rights. This stems partly from the "progressive realization" concept, which allows states to justify non-fulfillment based on resource limitations.
Example: If someone claims their right to work is violated due to unemployment, the state might argue it lacks sufficient resources to guarantee jobs for everyone. This justification might be accepted if genuinely based on resource constraints, making legal enforcement challenging compared to clear violations of civil rights (like torture).
However, international human rights law increasingly emphasizes that states *do* have immediate obligations regarding ESC rights, such as non-discrimination in access and taking concrete steps towards progressive realization, making aspects of these rights justiciable.
Exercise:
List one economic, one social, and one cultural right recognized in the FDRE Constitution, citing the relevant articles.
5.7.5.3 Solidarity Rights (Third Generation)
Often termed solidarity rights, these emerged more recently, focusing on collective well-being and global cooperation. They emphasize rights related to shared resources and conditions necessary for flourishing communities and a sustainable planet. Examples include the right to peace, the right to development, and the right to a healthy environment.
These rights often have a transnational dimension, implying shared responsibilities among nations (e.g., redistribution of resources, global cooperation on environmental protection and peace). They are still considered 'emerging' rights in some respects, with ongoing debate about precisely identifying rights holders (individuals? peoples? future generations?) and duty bearers (states? international community? corporations?).
Exercise:
Identify two solidarity rights recognized in the FDRE Constitution, citing the relevant articles.
Summary Table of 'Generations':
| Generation (Focus) | Category | Primary State Obligation* | Realization* | Primary Right Holder* |
|---|---|---|---|---|
| First (Liberty) | Civil & Political | Respect & Protect | Immediate | Individual |
| Second (Equality) | Economic, Social & Cultural | Fulfill (Progressively) | Progressive | Individual & Group |
| Third (Solidarity) | Collective (Peace, Development, Environment) | Cooperate | Progressive | Peoples / Humanity |
*Note: This table presents common generalizations; obligations/realization/holders are complex and debated.
Human rights are not absolute; they can be subject to restrictions under specific conditions. Two key concepts are limitations and derogations.
Both limitations and derogations must adhere to strict criteria under international and constitutional law. They cannot be arbitrary and must be necessary and proportionate to the legitimate aim pursued. Common justifications for limitations include safeguarding national security, public safety, public order, public health, public morals, or the rights and freedoms of others.
Even during states of emergency, certain fundamental rights can *never* be suspended or derogated from. These are known as non-derogable rights. International treaties like the ICCPR explicitly list rights that states cannot suspend under any circumstances.
Examples of Non-Derogable Rights (under ICCPR Article 4):
The FDRE Constitution (Article 93(4)(c)) also lists non-derogable rights during a state of emergency, specifically referencing Articles 1 (Nomenclature), 18 (Prohibition of Inhuman Treatment), 25 (Right to Equality), and 39(1) & (2) (Rights of Nations/Nationalities to self-determination, language, culture). Strict conditions must be met for any derogation of other rights, ensuring it's proportional and non-discriminatory.
5.7.8.1 International Mechanisms: The UN System
International law aims to ensure global peace, security, and conditions for a life with dignity. Protecting human rights is a core objective of the United Nations (UN), established by the UN Charter (1945). The Charter mandates the UN to promote universal respect for human rights.
Key UN organs involved include the General Assembly, Security Council, Economic and Social Council (ECOSOC), International Court of Justice (ICJ), and the Secretariat. ECOSOC oversees bodies like the Office of the High Commissioner for Human Rights (OHCHR). The International Bill of Human Rights (comprising the UDHR, ICCPR, and ICESCR) forms the foundation, supplemented by numerous specific treaties addressing genocide, refugees, racial discrimination, women's rights, torture, children's rights, migrant workers, disabilities, etc. Each core treaty typically has a monitoring body (committee) of independent experts reviewing state compliance.
The UN Charter establishes the UN's commitment to human rights, dignity, justice, and international cooperation as foundational principles.
The Universal Declaration of Human Rights (UDHR) (1948) is a landmark document setting out fundamental rights applicable to all people. While not initially a legally binding treaty, it carries immense moral weight and is widely considered to have attained the status of customary international law. It serves as the common standard and inspiration for most national and international human rights laws and constitutions adopted since 1948.
The UDHR's preamble proclaims it a "common standard of achievement for all peoples and all nations," urging respect through teaching and education. Its 30 articles cover core principles (equality, non-discrimination), civil and political rights (life, liberty, fair trial, free speech, privacy, etc.), and economic, social, and cultural rights (social security, work, health, education, culture), concluding with framework principles for realizing these rights.
Ethiopia is a signatory to many core international and regional human rights treaties, including the UDHR (as a foundational document), ICCPR, ICESCR, Convention Against Torture (CAT), Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), Convention on the Rights of the Child (CRC), the African Charter on Human and Peoples' Rights (Banjul Charter), and the African Charter on the Rights and Welfare of the Child, among others.
As per the FDRE Constitution (Article 9(4)), these ratified international agreements form an integral part of Ethiopian law. Furthermore, Article 13 mandates that the fundamental rights enumerated in the Constitution itself must be interpreted in conformity with these international instruments. This establishes a strong legal obligation on the Ethiopian state, at all levels, to respect, protect, and fulfill the human rights recognized in both domestic and international law.
Complementing the global UN system, regional human rights systems exist in Africa, the Americas, and Europe. These systems provide additional layers of protection and allow individuals to seek remedies if domestic systems fail. They often establish regional courts or commissions (e.g., African Court on Human and Peoples' Rights, European Court of Human Rights).
Regional systems can potentially incorporate regional values and contexts into human rights interpretations (though this must be balanced against universality) and may offer more accessible or effective enforcement mechanisms than the global system. The African human rights system operates under the African Union (AU), based primarily on the African Charter on Human and Peoples' Rights (Banjul Charter).
Question for Discussion:
Is there a hierarchy between international, regional, and national human rights protections? How should conflicts be resolved?
The primary foundation for human rights observance in Ethiopia is the 1995 FDRE Constitution. It declares human rights inherent, inviolable, and inalienable (Article 10) and dedicates Chapter Three (Articles 13-44) to enumerating fundamental rights and freedoms, covering civil, political, economic, social, cultural, developmental, and environmental rights.
As noted, Articles 9(4) and 13(2) integrate ratified international human rights instruments into Ethiopian law and mandate interpreting constitutional rights consistently with these international standards. The Constitution obliges all government organs at all levels to respect and enforce these rights.
To further promote and protect rights, the Constitution mandated the establishment of specific institutions, including the Ethiopian Human Rights Commission (EHRC) and the Institution of the Ombudsman (EIO). Other bodies like Ethics and Anti-Corruption Commissions and the National Election Board also play roles in ensuring accountability, transparency, and democratic rights essential for human rights realization. An independent judiciary is also constitutionally guaranteed as a key enforcement mechanism.
This chapter explored the interconnected concepts of constitution, constitutionalism, democracy, and human rights. A constitution serves as the fundamental law, structuring government and defining rights. Constitutionalism signifies adherence to constitutional limits on power. Democracy represents rule by the people, characterized by principles like popular sovereignty, rule of law, elections, and protection of rights. Human rights are universal, inalienable entitlements inherent to all persons, crucial for dignity and a life worth living.
We examined features and classifications of constitutions, theories of the state, core democratic values and principles, actors in democratization, and the nature, principles, categories, and implementation mechanisms (international, regional, national) of human rights, including Ethiopia's constitutional framework. These concepts are interdependent: constitutionalism and democracy provide the framework for realizing human rights, while respect for human rights is essential for legitimate constitutional governance and meaningful democracy.
Discussion / Short Answer Questions:
Alston, P. (2000). [Source needed for quote on generations, likely chapter in edited volume].
Banks, J. A. (2008). Diversity, Group Identity, and Citizenship Education in a Global Age. *Educational Researcher*, *37*(3), 129–139.
Bauböck, R., & Paskalev, V. (2015). Cutting Genuine Links: A Normative Analysis of Citizenship Deprivation. *Georgetown Immigration Law Journal*, *30*, 47-118.
Bellamy, R. (2008). *Citizenship: A Very Short Introduction*. Oxford University Press.
Bunbongkarn, S. (2001). The role of civil society in democratic consolidation in Asia. *JCIE Papers*, *28*. Japan Center for International Exchange.
Camara, M. S. (2008). Media, civil society and political culture in West Africa. *African Journalism Studies*, *29*(2), 210-229.
Castles, S. (1999a). *Globalization, Multicultural Citizenship and Transnational Democracy*. Research Institute for Humanities and Social Sciences, University of Sydney.
Castles, S. (1999b). Multicultural Citizenship. *Research Paper No. 16 1995-96*. Department of the Parliamentary Library, Australia.
Dahl, R. A. (1982). *Dilemmas of Pluralist Democracy: Autonomy vs. Control*. Yale University Press.
Diamond, L. (1999). *Developing Democracy: Toward Consolidation*. Johns Hopkins University Press.
Dorsen, N., Rosenfeld, M., Sajó, A., & Baer, S. (2003). *Comparative Constitutionalism: Cases and Materials*. West Group.
Gashaw, A. (2015). *Constitution, Constitutionalism and Foundation of Democracy in Ethiopia*. [Publisher/Source needed].
Getahun, K. (2007). Mechanisms of Constitutional Control: A preliminary observation of the Ethiopian system. *Afrika Focus*, *20*(1-2), 75-100.
Hannum, H. (1995). The status of the Universal Declaration of Human Rights in national and international law. *Georgia Journal of International & Comparative Law*, *25*, 287-397.
Heywood, A. (2013). *Politics* (4th ed.). Palgrave Macmillan.
Hohfeld, W. N. (1919). *Fundamental Legal Conceptions as Applied in Judicial Reasoning*. Yale University Press.
Hoskins, B., et al. (2011). *Comparing Civic Competence Among Youth...* JRC Scientific and Technical Reports.
Ibrahim Idris. (2000). The place of International Human Rights Conventions in the 1994 Federal Democratic Republic of Ethiopia Constitution. *Journal of Ethiopian Law*, *20*, 113-146.
Isin, E. F., & Turner, B. S. (Eds.). (2002). *Handbook of Citizenship Studies*. SAGE Publications.
Jones, E., & Gaventa, J. (2002). *Concepts of Citizenship: A Review*. Institute of Development Studies.
Kymlicka, W. (1995). *Multicultural Citizenship: A Liberal Theory of Minority Rights*. Oxford University Press.
Kymlicka, W. (2001). *Politics in the Vernacular: Nationalism, Multiculturalism, and Citizenship*. Oxford University Press.
Kymlicka, W., & Norman, W. (1994). Return of the Citizen: A Survey of Recent Work on Citizenship Theory. *Ethics*, *104*(2), 352-381.
Landman, T. (2005, July). *The scope of human rights: From background concepts to indicators*. Paper presented at the Turku Expert Meeting on Human Rights Indicators & Nordic Network.
Lell, H. M. (2014). The Concept of Citizenship: Multicultural Challenges and Latin American Constitutional Democracy. *Birkbeck Law Review*, *2*, 87-116.
Lindblom, C. E. (1980). *The Policy-Making Process* (2nd ed.). Prentice-Hall.
Lister, R. (1997). *Citizenship: Feminist Perspectives*. Macmillan.
Lister, R. (1998). Citizen in action: Citizenship and community development in Northern Ireland context. *Community Development Journal*, *33*(3), 226-235.
Locke, J. (1960). *Two Treatises of Government* (P. Laslett, Ed.). Cambridge University Press. (Original work published 1690).
Manby, B. (2010). *Citizenship Law in Africa: A Comparative Study*. Open Society Foundations.
Marquand, D. (1988). *The Unprincipled Society: New Demands and Old Politics*. Jonathan Cape.
Marshall, T. H. (1964). *Class, Citizenship, and Social Development*. Doubleday. (Original work 1950).
Merrifield, J. (2001). *Learning Citizenship*. Learning from Experience Trust. [Discussion Paper].
Miliband, R. (1969). *The State in Capitalist Society*. Weidenfeld & Nicolson.
Moon, J., Crane, A., & Matten, D. (2005). Can Corporations be Citizens? Corporate Citizenship as a Metaphor for Business Participation in Society. *Business Ethics Quarterly*, *15*(3), 429-453.
Mouffe, C. (Ed.). (1992). *Dimensions of Radical Democracy: Pluralism, Citizenship, Community*. Verso.
Nickel, J. W. (1987). *Making Sense of Human Rights: Philosophical Reflections on the Universal Declaration of Human Rights*. University of California Press.
Nordlinger, E. A. (1981). *On the Autonomy of the Democratic State*. Harvard University Press.
Norris, P. (2006). *The Role of the Press in Promoting Democratization, Good Governance and Human Development*. UNESCO.
Nozick, R. (1974). *Anarchy, State, and Utopia*. Basic Books.
Osler, A., & Starkey, H. (2006). Education for democratic citizenship: A review of research, policy and practice 1995–2005. *Research Papers in Education*, *21*(4), 433-466.
Patrick, J. J. (1986). *Teaching about the Constitution in American Secondary Schools*. ERIC Clearinghouse.
Patrick, J. J. (1999). *The Concept of Citizenship in Education for Democracy*. ERIC Clearinghouse.
Poulantzas, N. (1973). *Political Power and Social Classes*. New Left Books. (Original work 1968).
Print, M., & Lange, D. (Eds.). (2013). *Civic Education and Competences for Engaging Citizens in Democracies*. Springer.
Rawls, J. (1971). *A Theory of Justice*. Belknap Press of Harvard University Press.
Reisman, W. M. (1990). Sovereignty and human rights in contemporary international law. *The American Journal of International Law*, *84*(4), 866-876.
Sandel, M. J. (1982). *Liberalism and the Limits of Justice*. Cambridge University Press.
Sandel, M. J. (1996). *Democracy's Discontent: America in Search of a Public Philosophy*. Belknap Press of Harvard University Press.
Sastry, T.S.G., et al. (2011). *Political Science I*. Himalaya Publishing House.
Schuck, P. H. (2002). Liberal Citizenship. In E. F. Isin & B. S. Turner (Eds.), *Handbook of Citizenship Studies* (pp. 131-144). SAGE Publications.
Schumpeter, J. A. (1943). *Capitalism, Socialism, and Democracy*. Harper & Brothers.
Schwarzmantel, J. (1994). *The State in Contemporary Society: An Introduction*. Harvester Wheatsheaf.
Smith, R. M. (2002). Modern Citizenship. In E. F. Isin & B. S. Turner (Eds.), *Handbook of Citizenship Studies* (pp. 105-115). SAGE Publications.
Taylor, C. (1989). *Sources of the Self: The Making of the Modern Identity*. Harvard University Press.
Taylor, C. (1999). *Nationalism, Morality and Community*. Macmillan.
UN. (1948). *Universal Declaration of Human Rights*. United Nations.
UN. (2015). *The Universal Declaration of Human Rights*. [Brochure/Publication]. United Nations.
UN OHCHR. (2017). [Source needed for diagram - likely training materials or website].
UNDP. (2004). *Human Development Report 2004: Cultural Liberty in Today's Diverse World*. UNDP.
Vasak, K. (Ed.). (1982). *The International Dimensions of Human Rights* (Vol. 1). Greenwood Press/UNESCO.
Vile, M. J. C. (1998). *Constitutionalism and the Separation of Powers* (2nd ed.). Liberty Fund.
Walter, L. (2014). Theories of Universal Human Rights and the Individual’s Perspective. *International Community Law Review*, *16*(1), 119-136.
Wellman, C. (2000). Solidarity, the Individual and Human Rights. *Human Rights Quarterly*, *22*(3), 639-657.
Wilmer, F. (2015). *Human Rights in International Politics: An Introduction*. Lynne Rienner Publishers.
Wood, B. E. (2014). Researching the Everyday: Young People's Experiences and Expressions of Citizenship. *International Journal of Qualitative Studies in Education (QSE)*, *27*(2), 214-232.
Young, I. M. (1989). Polity and group difference: A critique of the ideal of universal citizenship. *Ethics*, *99*(2), 250-274.
Young, I. M. (1990). *Justice and the Politics of Difference*. Princeton University Press.