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Chapter One
Introduction to Constitutional Law
1.1 Defining a Constitution & Constitutional Law
In an ordinary parlance, people use the term ‘constitution’ to mean the governing document of
their association. In fact, they consider it as the rule of the game for the ‘play’ they are going to
perform. This is not as such devoid of any form of truth in the path of understanding what a
constitution is. However, when it is applied to a concept having both legal and political
significance, it goes beyond what private persons agree for themselves. Following are few
definitions that will help you understand its meaning.
‘A constitution is a body of rules that express the wishes of the people who make it with
regard to the type and powers of the government through which they decide to be
represented.’
According to the above definition, a constitution is viewed as the expression of the people’s
wish. Therefore, it must be made by the people themselves who are the only true sources of
their own wishes. If, however, a constitution is to be made by experts who think that they know
what the people in that country wish, then it violates the basic definitional element of a
constitution irrespective of the ability of the speculators in properly addressing those wishes.
Such rules which reflect the wishes of the people mainly address, according to this definition,
the type of government that they want to put in place as well as the powers of same. Thus,
the main object of a constitution is instituting the government together with defining its
power.
Even if it is believed that the makers of the constitution are the people in the particular country
concerned, the processes in having the final work may, nonetheless, follow very complex
procedures. In such processes, the people may not, sometimes, play an active role by direct
involvement. Moreover, beyond and above the role that it plays as a document that institutes a
government together with defining its powers, there are other important issues that it addresses.
For instance, the basic rights of the people, which are usually made part and parcel of the
constitution, are meant to serve as ‘contractual terms’ between the government and its subjects.
These and other aspects of a Constitution seem to have been overlooked by this definition.
Let’s read another definition:
‘A constitution is a fundamental law by which the powers of the government are being
defined and limited.’
Unlike the former definition, the later does not state as to who may make a constitution.
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However, it has brought in to our attention the fundamentality of a constitution which in fact is

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correct. By ‘fundamental’ we mean that a constitution is the basis for all other laws and that is
why we call it ‘the mother of all laws’. Furthermore, the definition explains the contents of a
constitution to be defining and limiting the powers of the government. Thus, what it has in it is
only the powers of the government which need to be defined and limited.
When we look to this definition very critically, we can say that it is too limitative a definition
restricting the contents of a constitution only to few parts that this basic politico-legal document
is supposed to have. Not to mention what we have said above concerning the rights and
freedoms of the people, a constitution also lays down such things as state structure and
forms of government, basic constitutional principles, amendment procedures, etc.
Therefore, such a narrow definition may have the risk of uncovering the relevant aspects of a
constitution.
Let me give you a third definition and then we will try to wind up our discussion of this
subsection.
‘A constitution is the whole system of government that establishes and governs the
government.’
According to this definition, a constitution is a system of government. And the whole purpose
of it is to establish and govern the government. Still one may mention the above comments
relating to the second definition where we said that it was too narrow a definition failing to
confer proper meaning for what a constitution is. When you look at it, a body of rules that does
not establish and come up with rules to regulate the government would not be named as a
constitution. We may agree with this fact since a constitution is actually meant to establish and
govern the powers of the government within the confines of some defined principles and terms.
Nonetheless, there are lots of other factors that need to be addressed by this fundamental
document.
In sum all the above definitions put together will only give us the essence of a constitution
and the fact that it is not easy to come up with a single definition for it.
Basically, it is meant to address the wishes of the people in a country as to what form of
government to have, the powers of such government, the division of its powers among the
various state organs, the guarantee of the people’s rights and freedoms which will serve as
contractual terms, for a government that keeps them to remain in power, or for the one which
readily defaults to be removed by the subjects of these rights. In addition to that one has to bear
in mind the fundamentality aspect of the constitution.
And Constitutional law is that branch of public law that governs the interplay of the
government in relation both to the public as well as within its subdivisions. It is the
fundamental national law of states by which they institute state organs, lay down the basic
enforceable norms and other general principles that are meant to guide the ordinary laws to be
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issued. Most importantly, the rights and freedoms of the people are dogmatically phrased in the

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constitutional law indicating their scope and the possible restrictions that may be imposed
through special laws. Thus, constitutional law is a law that sets the whole system of government
in motion within clearly defined play yards and rules of the game as stipulated in the same law.
1.2 Some Concepts relating to Constitution Law
There are few concepts that best be treated in relation to constitutional law study than any other
courses. They impinge, one way or another, upon constitutional law adoption, application and
analysis. The most important ones are the concept of State, Nations, Government, Democracy
and Sovereignty.
1.2.1. State
The most important issues related to state powers are to be resolved in a constitution of a
country. For this reason, it is essential to define a state and understand its meaning as one of the
important concepts in this constitutional law course.
A state is a political institution that establishes sovereign jurisdiction within defined borders,
and exercises authority through a set of permanent institutions which are recognizably
public.
According to this definition, therefore, a state has five features: first and foremost, it has a
sovereign power over all individuals and groups where it has won political supremacy.
Secondly, such sovereign power is to be exercised within a defined territory which should be
measurable and recognizable by other states. The third feature is that the state should have a
dominant exercise of power which must be, if worse, backed by coercion. This is to mean that
the state must have monopoly in using coercion to secure compliance to its laws and standards
that address the common good. Fourthly, the exercise of power is done through its permanent
institutions. And finally such institutions are, in contrast to the private institutions such as family
and civil societies, recognizably public, in the sense that they address the public interest and are
financed by the public money.
1.2.2 Nation
Our next discussion will be to see what a nation is. It is not unusual to find the use of state,
nation, country, ethnic group and race interchangeably. However, these have deep distinctions.
Nation and nationalism have won a tremendous attention worldwide and the cause for
widespread disputes justified by nationalism is mainly attributed to the misunderstanding as to
the exact meaning of a nation.
‘Nation’ is a derivative of a Latin word, ‘nasci’ to mean ‘to be born’. It is a very complex
phenomenon describing interplay of cultural, political and psychological factors.
 Culturally, a nation is a group of people bound together by a common language, religion,
history and traditions.
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  Politically, a nation is group of people who regard themselves as a natural political
community.
 Psychologically, a nation is a group of people distinguished by a shared loyalty or
affection in the form of patriotism. However, such an attachment is not a necessary
condition for membership of a nation; even those who lack national pride may still
recognize that they ‘belong’ to the nation.
Thus, such objective and subjective elements involved in the definition of a nation make the
concept much more complex. Objectively speaking, every nation has its own peculiarities by
exhibiting common language, culture, religion, etc. However, it does not end here. They also,
subjectively speaking, have a psychological tie to be political entities within a group that shares
such common cultural values. Thus, the members in a nation regard themselves as a nation, a
collectivity, a distinctive political community. This, however, is not the case in other groupings
such as ethnic group. An ethnic group, though shares a common identity and patriotism-the
objective element-they still lack a common political aspiration.
1.2.3 Government
Government is a very common word as are state and nation. Broadly speaking ‘to govern’
means to rule or to have control over others. Government therefore can be taken to include
any mechanism through which ordered rule is maintained, its central features being the
ability to make collective decisions and the capacity to enforce them. A form of government
can thus be identified in almost all social institutions: families, schools, businesses, trade unions
and so on. However, the latter type of situations could properly be named as institutions of
governance. Government is more commonly understood to refer to the formal and institutional
processes that operate at the national level to maintain public order and facilitate collective
action. The core functions of government are thus to make law (legislation), implement law
(execution) and interpret law (adjudication).
The principal differences between government and state are the following:
The state is wider than government. The state is an inclusive association that
encompasses all the institutions of the public realm and embraces all the members of
the community (in their capacity as citizens). Government is part of the state.
The state is a continuing, or even a permanent entity. Government is temporary:
governments come and go, and systems of government can be reformed and
remodeled.
Government is the means through which the authority of the state is brought into
operation. In making and implementing state policy, government is ‘the brain’ of the
state and it perpetuates the state’s existence.
The state exercises impersonal authority. The personnel of state bodies is recruited and
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trained in a bureaucratic manner and is (usually) expected to be politically neutral,

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 enabling state bodies to resist the ideological interests of the government of the day.
The state, in theory at least, represents the permanent interests of society. That is, the
common good or general will. Government, on the other hand, represents the partisan
sympathies of those who happen to be in power at a particular time.
There exist various forms of governments based on the classifications adopted from the ancient
political philosopher Aristotle. His refined classification of governments in to six varieties has
been adopted by many writers. Look into this table very closely.
According to this classification, tyranny, oligarchy and democracy are forms of government
where a single person, the few or the many exercise power in their own interests and at the
expense of others, respectively. Whereas, monarchy, aristocracy and polity are preferred forms
of government where a single person, the few or the many exercise power in the interest of
others.
1.2.4 Democracy
As is true for many of the political science and legal terms this well-known term-democracy-is
also derived from the ancient Greece. It is a combination of two terms; Demo, ‘demos’ in Greek
and ‘Cracy’, ‘cratos’ in Greek. The later-as in cases of autocracy, aristocracy and bureaucracy-
refers to power or rule. When it comes to the former it refers to ‘the people’ although originally
the Greeks used this to mean ‘the poor’ to ‘the many.’ When read together it tantamount to
saying ‘rule by the people.’
I am sure that you have heard of this word almost daily through the media. All countries of the
world claim to be democratic and speak of it as basic virtue of any government. To that extent it
is being given varied meanings and definitions that one way or another relates it with what has
been said above. The problem with such popularity of concepts is that they may mean anything
for organ or person that defines them. That is why a writer has once described the threat as, ‘a
term that can mean anything to anyone is in danger of meaning nothing at all.’ The following
meanings are being accorded to democracy by different politicians and scholars:
 A system of rule by the poor and disadvantaged,
 A form of government in which the people rule themselves directly and continuously,
without the need for professional politicians or public officials,
 A society based on equal opportunity and individual merit, rather than hierarchy and
privilege,
 A system of welfare and redistribution aimed at narrowing social inequalities,
 A system of decision-making based on the principle of majority rule,
 A system of rule that secures the rights and interests of minorities by placing checks
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  A means of filling public offices through a competitive struggle for the popular vote,
 A system of government that serves the interests of the people regardless of their
participation in public life.
Rather expressive and short description of the nature of democracy had been given by Abraham
Lincoln in 1864 and it goes “government of the people, by the people, for the people.” It is
crucial to answer the following three important questions in understanding the nature of
democracy: who are the people, in what sense should the people rule, and how far should popular
rule extend?
It must be clear by now that democracy implies power distribution. For early Greek writers the
‘demos’ represented the disadvantaged and propertyless masses. Whereas others understood ‘the
people’ as enshrined in democracy to mean the general will or collective will. Finally, the people
can be thought of as a collection of free and equal individuals, each of whom has a right to make
autonomous decisions.
What type of difficulties do you see in these three ways of addressing ‘the people’ for the
purpose of understanding ‘democracy’?
To begin with, to consider only the poor as having a say implies a bias to such group of the
society based on their lack of material wealth and there is no any rational ground to do so. When
it comes to the second view where the people refer to the majority, there is a tendency for the
tyranny of the majority, in which the will of the majority or numerically strongest overrides the
will of the minority. When we see the third and the final view it tends to imply that only
unanimous decisions can be binding upon the demos, and so dramatically restricts the application
of democratic principles.
The core principle of democracy is thought to be ‘political equality’. In broad terms this is to
mean an equal distribution of political power and influence. Political equality ensures, however
the ‘people’ is defined, each individual member carries the same weight: all voices are equally
loud. This can be understood in two ways. In liberal democratic theory, political equality
implies an equal distribution of political rights: the right to vote, the right to stand for election
and so on. This is often summed up as the principle ‘one person, on vote; on vote, one value’. In
contrast, socialists, amongst others, link political influence to factors such as the control of
economic resources and access to the means of mass communication. From this perspective,
political equality implies not merely equal voting rights, but also a significant level of social
equality. Where there exists political equality, therefore, there is democracy and thus distribution
of political power as widely as possible.
The second important question is how should the people rule in an atmosphere of political
equality? If we say that democracy is government by the people, then people govern themselves
by participating in the making of crucial decisions that structure their lives and determine the fate
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of their society. This participation may, however, take two basic forms. In the case of direct
democracy, popular participation entails direct and continuous involvement in decision-making,

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through devices such as referendums, mass meetings, or even interactive television. The
alternative and more common form of democratic participation is the act of voting, which is the
central feature of what is usually called representative democracy. When citizens vote, they are
not making the decisions that structure their lives; rather they choose who will make those
decisions in their behalf. What makes voting democratic is that it makes the officials publicly
accountable and enables the public see that the office-holders are there discharging their duties in
accord with their wishes.
Now that we have decided who the people are, and how they should rule, it is necessary to
consider how far their rule should extend. What is the proper realm of democracy? What issues is
it right for the people to decide, and what should be left to individual citizens? With this regard,
the models of democracy that have been constructed on the basis of liberal individualism have
proposed that democracy be restricted to political life, with politics being narrowly defined. From
this perspective, the purpose of democracy is to establish, through some process of popular
participation, a framework of laws within which individuals can conduct their own affairs and
pursue their own private interests. Democratic solutions, then, are appropriate only for matters
that specifically relate to the community; used in other circumstances, democracy amounts to an
infringement of liberty.
1.2.5 Sovereignty
Sovereignty, in its simplest sense, is the principle of absolute and unlimited power. It could be
described either as internal or external sovereignty, parliamentary or popular sovereignty. By
internal sovereignty we are referring to the notion of a supreme power/authority within the state,
located in the body that makes decisions that are binding on all citizens, groups and institutions
within the state’s territorial boundaries. When it comes to the external one it is also termed as
territorial sovereignty and refers to a state’s place in the international order and its capacity to act
as an independent and autonomous entity. The peace treaty of Westphalia in 1648 established the
notion of territorial sovereignty as a doctrine of non-interference in the affairs of other nations.
Parliamentary sovereignty, as followed by such countries of the world as the UK and New
Zealand, is a concept in constitutional law that applies to situations whereby a legislative body
has absolute sovereignty, meaning it is supreme to all other government institutions (including
any executive or judicial bodies as they may exist). Furthermore, it implies that the legislative
body may change or repeal any prior legislative acts. Parliamentary sovereignty contrasts with
most notions of judicial review, where a court may overturn legislation deemed unconstitutional.
Finally, by popular sovereignty we are referring to the situation where the sovereign power
holders are the people and not the parliament or any other organ. This is described in our FDRE
Constitution Article 8:
Article 8: Sovereignty of the People
1. All sovereign powers reside in the Nations, Nationalities and Peoples of Ethiopia.
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 2. This Constitution is an expression of their sovereignty. Their sovereignty shall be
exercised through their representatives elected in accordance with this Constitution and
through their direct democratic participation.

As per our Constitution -the nations, nationalities and peoples-are described to have the ultimate
power in all the acts of the government and such power is primarily exercised, unlike the case of
direct democracy, through their elected representatives. This reflects also the notion of
saexpressed by the Federal Constitution as well as through direct participation in the acts of
government.
In federal state structures such as ours, sovereignty also refers to powers which the state
governments possess independently of the central/the federal government, in the sense that the
federal and the state governments have their own defined jurisdictions as described in the federal
constitutions that both have agreed to. Any deviation from those specifications will tantamount to
infringement of sovereign powers. Thus, the federal constitution is like a pact that the central and
the federated units have ph b ut as the rule of the game for their continued and coordinated
existence.
1.2.6 Rule of Law
Rule of law is the most comprehensive and vital doctrine, principle and/or concept of modern
constitutions. Under Lon Fuller contribution (work) called the “inner morality” of law, Rule of
Law is not treated in its general sense of government under law. Rather, according to Fuller the
internal morality is to be distinguished from the external morality which is thesubstantive aims or
values that particular legal rules (standards) seek to promote. In other world Fuller developed a
conception of the Rule of Law, not by appealing to moral values drawn from the external
morality, but by spelling out the values that underlie the concept of law itself.”These values are
characterized as the eight desiderata. These identified eight elements of law, recognized as
necessary for a society aspiring to institute the Rule of law state as follows: -
1. Laws must exist and those laws should be able to win obedience.
2. Laws must be published.
3. Laws must be prospective in nature so that the effect of the law may only take place
after the law has been passed. Laws should be written with reasonable clarity to
avoid unfair enforcement.
4. Law must avoid contradictions. (intelligibility)
5. Law must not command the impossible. ( Non self-contradictoriness)
6. Law must be general.
7. Laws must stay constant through time to allow the formalization of rules; however;
law also must allow for
8. timely revisionwhen the underlying and political circumstances have changed.
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9. Official action should be consistent with the declared rule. (Congruency)

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Thus, rule of law should be clearly differentiatedfrom rule by law. The concept of rule by law
consider law is legitimate even though the rules made by government does not satisfy most
of the desiderata’s.
The very term Rule of Law suggests that the law itself is the sovereign, or the ruler, in a
society. As an idea, the rule of law stands for the proposition that no person or particular
branch of government may rise above rules made by selected political officials. These laws
are expected to reflect the morals of a society, and in a they are supposed to be pre-established,
formalized, neutral, and objective.
3. Constitution and Constitutionalism
The fact that a country has come up with a constitution does not mean that it governs itself
up to the standards that constitutionalism expects. For a constitution to have any meaning, it
must be tuned with constitutionalism. The concept is very important as far as constitutional
law study is concerned.
Constitutionalism, in its narrow sense, is the practice of limited government ensured by the
existence of a constitution. Thus, constitutionalism can, in this sense, be said to exist when
government institutions and political processes are effectively constrained by constitutional rules.
More broadly, constitutionalism is a set of political values and aspirations that reflect the desire
to protect liberty through the establishment of internal and external checks on government power.
Separation of powers could be taken as the best example that serves as an internal checking
mechanism to ensure constitutionalism in a particular country. The existence of judicial review, a
constitution, a bill of rights, bicameralism, and decentralization may be taken as external
checking mechanisms.
As is said above the fact of having a constitution may not, therefore, lead us to conclude that
there exists a constitutional government unless the constitution has the character of limiting the
government power through these internal and external checks on the exercise of government
power.
1.4 Basic Features of Constitution
It is important considering the basic features of constitutional law that make it distinct from any
of the other ordinary legislations. In this way you will be able to understand further the nature of
this fundamental legislation. The following three features are relevant.
1.4.1 Generality
A constitution has this defining feature of generality than any other piece of legislation in a
country. Constitutional norms are to provide for general principles that are meant to cover as
wider situations and happenings as possible. If it were to go to the detailed rule-makings with
extensive elaborations, then there would have been no or little need for having a legislature in
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that country as every norm would have been established by the text of the constitution.
Moreover, there would have been no room for manipulating its texts to accommodate newly

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emerging situations that need to be addressed without a need to change the constitution. In
effect, the generality of the norms to be set in a constitution is but one way of ensuring its
permanence or stability for an indefinite future. For instance, let’s read the following Article
from our Constitution:
Article 15: Right to Life
Every person has the right to life. No person may be deprived of his life except as a punishment
for a serious criminal offence determined by law.
From this provision we can understand many things even if it is stated in a very precise and brief
manner. It is stated that right to life is a right that is given for every person without any
distinction. Thus, it applies for citizens and non-citizens alike. The second bit of the provision
tells us that this right is not absolute in the sense that in exceptional circumstances determined by
law as serious criminal offences, one’s right to life may legitimately be deprived when and if the
court decides for so doing. A wide range of legislative discretion has been opened by this
provision to our law makers in the sense that they will have to decide what type of acts may
constitute serious criminal offences deserving capital punishment/death penalty.
Here the provision is general because it did not state, for example, which form of criminal acts
constitute as serious and that may calyx for death penalty. It rather only has put the basic
principle in general terms. This is so on the ground that what may constitute serious crime
today may no longer be so after sometime, or to the contrary an act which is not contemplated
as serious crime may change its character and becomes a serious crime for that particular time.
Thus, if the constitution is to remain stable, there is a need to put only the objective principles
leaving the rest for the determination of the particular legislative organ whose norms may
possibly be adjusted as the need arises. Moreover, this is so also because of the limited expertise
knowledge for the details on the part of those who may be engaged in drafting a constitutional
text. At the point of drafting a constitution what needs to be agreed upon is only the general
framework.
At this juncture, it is also good to point out that generality is not a feature exclusively of a
constitution. It is rather a common feature of all legislative provisions. All laws are supposed to
be general so as to let judicial flexibility with the objective of accommodating newly emerging
circumstances. Otherwise, a legislature would have been obliged to sit every day and draft new
laws for every aspect of human interactions. Therefore, what you have to bear in your mind is
that the difference lies in their degree of generality. Our legislature has, for example, already
provided in the Criminal Law that a person who has committed an aggravated homicide may
receive a punishment ranging from rigorous life imprisonment up to death sentence. The
possibility of imposing death sentence within Ethiopian territory has been derived from the
constitutional provision that we have seen above. Taking that possibility further, the legislature
has defined what may constitute serious criminal offence and said ‘aggravated homicide’. As to
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what may be considered as aggravated the law has said only killing of another with
‘premeditation, in an exceptionally dangerous way, with cruelty, or with the intention of hiding

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another offence, or working with others as a gang’. These are the indicators for the judiciary and
they do provide no clue if Mr. Mata has killed someone so as to be called as aggravated
homicide. Thus, this is a general statement of the law that the judiciary will have to manipulate
and apply for particular occurrences. Thus, no law exists that specifically addresses someone or
something so as to afford its ready-made application.
Most of our old codes are, however, believed to be more specific with deliberate effort on the
part of the drafters of those codes. As you might have read some of the provisions of the code,
they are filled in with many sub-articles trying to put general rules and then specifying the
exceptions, even sometimes the exceptions from the exception. While explaining this fact, Rene
David, the drafter of our Civil Code, had written that ‘due to the inadequacy of well-developed
jurisprudence and a fear that the judges may not be in a position to understand the
stipulations…it is tried to be descriptive at the pain of being unduly extensive’. Thus, when we
say generality it is a relative term, though the bottom-line for the generality principle of all laws
remains still valid.
1.4.2 Permanence and Transitivity
From the above discussion the values of the generality feature of a constitution expected to
ensure the stability/permanence of the constitution. This is the basic advantage of a general
rule. It will have the capacity to accommodate newly emerging circumstances to the extent
possible thereby avoiding the need for its frequent changes to cope up with societal dynamism.
Stability/permanence is also achieved due, mainly because of the fact that the amendment of a
constitution is not as simple as it is the case for ordinary laws. It is made to be out of the
reaches of the legislative organ, basically because it is the will of the people who alone should
decide to change it when the need arises. If we see the amendment procedure provided in our
constitution, it is so stringent that, among other things, the two federal houses, the regional
councils and the public-through discussion-must involve one way or another in any amendment
proposal relating to the provisions of the constitution. This is a topic that we will be coming back
to in our final discussions of this course. For the moment you can just have a quick look at
Articles 104 & 105 of the FDRE constitution. Thus, this also ensures the permanence of the
constitution.
The relevant question here is why is it that the constitution be permanent for an indefinite
future? In other words, what concern is being addressed in avoiding or at least shying away from
the frequent change of a constitution of a country? Constitutional stability is a factor that
creates a lasting peace in a society, coupled with other factors of course. We have once said
that a constitution is a pact between the government and the governed, the federal government
and the federated units in a federal constitution, and if that is true this pact/contract is expected to
remain stable so long as there is peace among those concerned. Unstable constitutional
environment more often than not implies socio-political instability, which is the case for most of
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African and other third world countries. If one looks at the American constitution, it has survived
over quite many years since 1787.

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Through the stable constitutional system the legislature will ensure continuity by issuing laws
that govern the ever changing social dynamisms. This implies that the ordinary laws need not,
relatively speaking, be stable so long as the need arises for changing them to accommodate new
happenings. When we see Ethiopia’s constitutional history, there has been a contrary trend of
events than suit. This is because, we have embraced our Civil Code for over 40 years while we
have had four constitutional changes within this same span of time. Basically, this emanates from
the background in which the country opted to adopt a constitution in those times. As we have
seen in our first module, such constitutions that experience frequent and radical change are those
which are tempered by political ideals of the adopting regime.
When we say transitivity of a constitution, it is to mean that the constitution has the nature of
serving as the source for all the other ordinary laws to be issued in that particular country. It
has therefore, a transitivity effect in the sense that it translates itself in all the other detailed
laws which exist but as implementing and promoting tools of the general legal, economic,
political, social, and cultural values and principles as reflected in the texts of the constitution. It
serves, in other words, as an umbrella within the country’s legislative and policy
formulation, implementation and review processes. That is what we call transitivity feature
of the constitution.
To summarize what we have seen so far, we can say that constitution must be able to stand
changes of governments and political ideals so as to qualify as stable/permanent. For how
long a constitution should remain operative to qualify as permanent/stable is just a question of
relativity. It is very difficult to say any of our constitutions to be stable, including the FDRE
constitution. This is because of the fact that the latter has not yet been tested whether it could
stand change of even a single regime or political ideal. And transitivity of a constitution tells us
that a constitution is meant to reincarnate itself in ordinary legislations.
1.4.3 Supremacy
Supremacy of the constitution is even one of the fundamental principles of a constitution. A
constitution has this innate character or feature of being supreme to any other law within the
country. This reinforces its feature of generality and transitivity. It is supreme from the
historic point of view. This is to mean that the constitution has been created earlier than a
legislature that is making a law within the country and with which the constitution is being
compared. Thus, there is this ‘historic’ ground to consider the constitution supreme since it has
come first than the legislative organ, even much more so for its laws.
Secondly, there is a moral ground for the supremacy of the constitution in the sense that the
creature must always be considered lower than the creator itself. The constitution is
resumed to create all the organs of government which are endowed with legislative, executive
and judicial responsibilities. Thus, any of these organs’ enactments must be subdued as lower
than the constitution itself which is considered as the mother of all laws. Thus, this is from the
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Legally speaking the constitution contains general principles that are meant to be translated by
implementing legislations, decisions and policies in the country. Thus, they are the sources of all
the other norms that are meant to be applicable in a compatible manner. Thus, since all the other
laws owe their authority to the constitution, they must remain below the general principles laid
down in the constitution. And the constitution itself will always have a supremacy clause giving
it a legal ground and not just moral or historical reasons. We will be looking into Article 9 of the
FDRE constitution (the Supremacy clause) in our next chapter discussion. Thus, for these
reasons, the constitution must be supreme and all constitutions have this feature. With this we
shall end this part of our discussion and of course the chapter too with the following few
summery questions that you need to answer.
1.5Classification of Constitutions
Classifying constitutions under various headings based on such features as ‘the form and status
of its rules, the ease with which the constitution can be changed, the degree to which the
constitution is observed in practice, and based on its content’ has the benefit of clarity of
knowledge in the area. The following are the vvarious classifications of constitutions.
1.5.1 Written/Unwritten constitution
The most widely known classification is the one that categorises constitutions in to two based on
the form they assume. It is clear from the wording that when we say a constitution is written, it
is to mean that the constitutional principles have been documented and have taken such a
form that enables them easily accessible while the unwritten ones are those which do not have
such a form of documentation and which are presumed to be found in that society’s custom and
tradition. While the written ones are considered to involve the human ingenuity as their
creator, the unwritten ones are just organic evolutions of societal dynamism and tradition.
Over the world, there are only few countries that have unwritten constitution (i.e. Israel, New
Zealand and the UK together with Bhutan, Saudi Arabia and Oman which are considered as non-
democratic states), the overwhelming majority of the world states have written constitutions.
Both the written as well as the unwritten forms of a constitution have their own benefits and fouls
which have been exhaustively identified by Andrew Heywood in his book entitled ‘Politics’ (H.,
Andrew 1997; 295). I have reproduced his statements herein below for you;
A codified constitution: strengths and weaknesses
The strengths of a codified or written constitution include the following;
 Major principles and key constitutional provisions are entrenched (securely established).
 The power of the legislature is constrained, cutting its sovereignty down to size.
 Non-political judges are able to police the constitution to ensure that its provisions are
upheld by other public bodies.
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  Individual liberty is more securely protected, and authoritarianism is kept at bay (is
restrained).
 The codified document has an educational value, in that it highlights the central values
and overall goals of the political system.
The drawbacks or weaknesses of codification include the following;
 A codified constitution is more rigid, and may therefore be less responsive and adaptable
than an uncodified one.
 Government power may be more effectively constrained by regular elections than by a
constitutional document.
 With a codified constitution, constitutional supremacy resides with non-elected judges
rather than with publicly accountable politicians.
 Constitutional provisions enshrined in custom and convention may be more widely
respected because they have been endorsed by history and not ‘invented’.
 Constitutional documents are inevitably biased, because they endorse one set of values or
principles in preference to others, meaning that they may precipitate more conflicts than
they resolve.
These are very pertinent and exhaustive listings that one can make with regard to the nature and
virtues of each form of constitutions. It is good to note that the advantage mentioned for the
written constitutions is generally considered as the disadvantage of the unwritten one.
Accordingly, when we say that the written constitution has a feature of being rigid than not, we
are saying that the unwritten one is relatively speaking flexible. This is so because, in the
countries where their constitution is not codified, they have the principle of parliamentary
sovereignty than constitutional supremacy. This same fact empowers the elected representatives
of the public to do whatever they might consider constitutionally sound legislation thereby
changing the existing principles in the way it pleases them. Their formal accountability being to
the public and exercisable once in a while during election periods it is likely that they may be in a
position to make frequent changes on the unwritten constitutional principles of that particular
country. It is, in any case, proper to understand these pros and cons as applicable to both of the
forms by reading what is said for one in the opposite.
1.5.2 Rigid/Flexible Constitution
Such classification is based on the susceptibly/amenability of the constitution for change.
And it is very important to understand the fact that both are very relative terms in the sense that a
constitution is rigid or flexible by comparison to peer documents of its nature, otherwise there is
no any criteria or objective content either for a rigid or flexible constitution, as such. A
writer by the name Bryce (J., Bryce, 1835) had tried to connect the written/unwritten dichotomy
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with the rigid/flexible in his two Essays (‘Flexible and Rigid Constitutions’ and ‘The Action of
Centripetal and Centrifugal Forces on Political Constitutions’). He proposed that the basic

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distinction between the written and unwritten constitutions is not solely to be seen from its
superficial form of being documented or not, rather also observable ‘in the relation which
each type of constitution bears to the ordinary laws of the state, and to the ordinary authority
which enacts those laws.’ Now it is important to relate it with the rigid/flexible classification of
the constitution.
In situations of unwritten constitution, the relation of the constitution with that of the ordinary
laws is that they have the same rank and exert the same force. Moreover, there is a single
authority to make and unmake any law of whatever nature, be it constitutional or other ordinary
law. Let’s try to establish the same relation for the written constitution. In case of written
constitutions, there are two kinds of laws, one kind higher than the other, and more universally
strong/potent; and there are likewise two legislative authorities, one (for example, a Constituent
Assembly) superior and capable of legislating for all purposes whatsoever, the other inferior and
capable of legislating only so far as the superior authority has given it the right and function to do
so. From such relation one can see that written constitutions are more of rigid as they are
supposed to remain authoritative over the changing and ordinary legislations that are to be issued
by the ordinary law-making organ which is to be empowered by the written constitution. Thus,
here the constitutional supremacy, rather than the parliamentary sovereignty is to be guaranteed.
Bryce further makes a very rational conclusion from the relations that we have tried to establish
between written and rigid constitutions on the one hand and unwritten and flexible constitutions.
‘Flexible constitutions have tended to be more stable than rigid ones.’ Do you accept his
conclusion? This seems a contradiction in terms since flexible means a direct opposite to
stability, which word is some times used as a synonym for rigid constitutions. He has reasons for
his assertions which are worth noting here. First, he says, stability of any constitution depends
not so much on its form (its being written or unwritten) as on the social and economic forces that
stand behind it and support it. Secondly, the best instances of flexible constitutions have been
those which grew up and lived on in nations of a conservative temper, nations which respected
antiquity, which valued precepts, which liked going on doing a thing in the way their fathers had
done it before them. The third and final reason he gives for his paradoxical assertion is that a
constitution which has come down in the form of a mass of laws, precepts and customs, is not
more mysterious, and therefore more august (noble), to the minds of the citizens than one they
can read in a document, but is not felt by them to lie at their mercy and to live only by their
pleasure.
The features of a written constitution as either being flexible or rigid may be readable from the
procedures of amendment that are laid down in its texts. Let us see what three constitutions
provide for amendment procedures, one of which being the FDRE constitution. Three texts are
chosen not by accident rather by design so that to make you sense the flavour of relativity with
regard to this form of classification of constitutions. These are the Federal Republic of Nigeria’s
Constitution, the Switzerland’s Constitution and that of the FDRE constitution.
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 a) Federal Republic of Nigeria’s Constitution chapter I, Part II and Section 9 (which
falls within the part that treats powers of the Federal Republic of Nigeria)
provides the following:
(1) The National Assembly may, subject to the provision of this section, alter any of the
provisions of this constitution.
(2) An Act of the National Assembly for alteration of this constitution, not being an Act to
which section 8 of this constitution applies (this is a section that discusses how to pass an
Act that creates a new state/region in our case), shall not be passed in either House of the
National Assembly unless the proposal is supported by the votes of not less than two-
thirds majority of all the members of that House and approved by resolution of the
Houses of Assembly of not less than two-thirds of all the States.
(3) An Act of the National Assembly for the purpose of altering the provisions of this
section, section 8 or Chapter IV (which is about Fundamental rights, as is Chapter III of
the FDRE Constitution) of this Constitution shall not be passed by either House of the
National Assembly unless the proposal is approved by the votes of not less than four-
fifths majority of all the members of each House, and also approved by resolution of the
House of Assembly of not less than two-third of all States.
(4) For the purposes of section 8 of this Constitution and of subsections (2) and (3) of this
section, the number of members of each House of the National Assembly shall,
notwithstanding any vacancy, be deemed to be the number of members specified in
sections 48 (This is a provision that says ‘The Senate shall consist of three Senators from
each State of them-and one from the Federal Capital Territory, Abuja’) and 49 (Again
this is a provision that says ‘Subject to the provisions of this Constitution, the House of
Representatives shall consist of three hundred and sixty members representing
constituencies of nearly equal population as far as possible, provided that no
constituency shall fall within more than one State’) of this Constitution.
b) The Constitution of Switzerland under Articles 138 and 139 has the following to
say;
Article 138: Popular Initiative for the total revision of the Federal Constitution
(1) 100,000 citizens entitled to vote may propose a total revision of the Federal Constitution.
(2) 100,000 citizens entitled to vote may within 18 months of the official publication of their
initiative demand a total revision of the Federal Constitution.
Article 139: Formulated popular initiative for Partial Revision of the Federal Constitution
(1) 100,000 citizens entitled to vote may within 18 months of the official publication of their
formulated initiative demand a partial revision of the Federal Constitution.
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(2) If the initiative violates the principle of unity of form, the principle of unity of subject
matter, or mandatory rules of international law, the Federal Parliament declares it invalid, in
whole or in part.
(3) The initiative is submitted to the vote of the people and Cantons. The Federal Parliament
recommends the initiative for adoption or rejection.
c) The FDRE Constitution Articles 104 and 105
Article 104: Initiation of Amendments
Any proposal for constitutional amendment, if supported by two-thirds majority vote in the
House of Peoples’ Representatives, or by a two-thirds majority vote in the House of the
Federation or when one-third of the State Councils of the member States of the Federation,
by a majority vote in each Council have supported it, shall be submitted for discussion and
decision to the general public and to those whom the amendment of the Constitution
concerns.
Article 105: Amendment of the Constitution
(1) All rights and freedoms specified in Chapter Three of this Constitution, this very
Article, and Article 104 can be amended only in the following manner:
 When all State Councils, by a majority vote, approve the proposed
amendment;
 When the House of Peoples’ Representatives, by a two-thirds majority
vote, approves the proposed amendment; and
 When the House of the Federation, by a two-thirds majority vote,
approves the proposed amendment.
(2) All provisions of this Constitution other than those specified in sub-Article 1 of
this Article can be amended only in the following manner:
 When the House of Peoples’ Representatives and the House of the
Federation, in a joint session, approve a proposed amendment by a two-
thirds majority vote; and
 When two-thirds of the Councils of the member States of the Federation
approve the proposed amendment by majority votes.
From the wording of the above provisions it appears that the most rigid one is obviously the
Swiss Constitution as it calls for its amendment a referendum, which is more stringent to arrive at
such wide range of assent than securing a majority (either qualified or absolute) of people sitting
in a parliament. And when we compare the Nigerian and that of Ethiopian Federal constitutions,
there appears greater similarity than difference. The only variation that we see is in relation to
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initiation and participation of the public in discussing the initiated proposal of amendment,

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though it matters almost nothing in determining the flexibility or rigidity of a constitutional text.
A closer look to the provisions also reveals that the FDRE constitution is more rigid with regard
to the amendment of the rights and fundamental freedoms since it requires the majority votes’
approval of all the States’ Councils while the Nigerian Constitution only requires two-thirds of
the States’ approval.
1.5.3 Federal/Unitary Constitution
This is a classification of constitutional texts based on their content. A constitution may
establish a unitary state structure whereby it establishes a central government with single
legislative, executive and judicial organ which operate at the centre and regulate all the
parts of the country with arms-length relations. Where the state structure established by the
constitution is that of Federalism, then the constitution is named as federal constitution and its
contents accordingly vary from that of a constitution that establishes a unitary State
Structure.
The content of a federal constitution is basically engaged in power division between the central
and the regional/state/cantonal governments and that is a very complicated assignment for the
architects of such a constitution. It requires the understanding of the country’s situations to a
micro-level details and it has to address most of the sources of differences and those that could be
put as common aspirations. By the differences, the regional governments’ power shall be
identified and by the common aspirations, the central government’s powers and responsibilities
will be defined.
When it comes to a constitution that is supposed to establish a single central government, the
whole idea will be delimiting the government’s power through the people’s rights and freedoms,
vertical division of power among the three organs of government and addressing the principles of
checks and balances. We shall be discussing the differences of the two in much detail in our next
module which is about forms, systems and organs of governments.
1.5.4 Republican/monarchical constitutions
A constitution may have content of establishing a republican government or to the contrary a
monarchical one. ‘Republic’ is derived from two Latin words-‘res’ and ‘publica’- which means
‘thing or affair of the public’. It is a form of government in which state is ruled by
representatives elected by its [Link] term was originally applied to a form of
government in which the leader is periodically appointed under a constitution; it was contrasted
with governments in which leadership is hereditary. A republic may also be distinguished from
direct democracy, though modern representative democracies are by and large republics.
Today it is understood to be a sovereign state ruled by representatives of a widely inclusive
electorate. The term republic formerly denoted a form of government that was both free from
hereditary or monarchical rule and had popular control of the state and a conception of public
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welfare. It is in this sense that we speak of the ancient Roman republic. Today, in addition to the
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(freed) and in which the state's power is constitutionally limited. Traditionally a republic is
distinguished from a true democracy in that the republic operates through a representative
assembly chosen by the citizenry, while in a democracy the populace participates directly in
governmental affairs. In actual practice, however, most modern representative governments are
closer to a republic than a democracy. The United States is an example of a federal republic, in
which the powers of the central government are limited and the component parts of the nation,
the states, exercise some measure of home rule. France is an example of a centralized republic, in
which the component parts have more limited powers. The USSR, though in theory a grouping of
federated republics and autonomous regions, was in fact a centralized republic until its breakup
in 1991. As the name implies, the Federal Democratic Republic of Ethiopia is also an example of
a republic.
Often Republics and Monarchies are described as mutually exclusive. Defining a republic as a
non-monarchy, the most common short definition, is based on this idea. When we speak of
Monarchy we refer to undivided sovereignty or rule by a single person, who is the permanent
head of state. The term is now used to refer to countries with hereditary sovereigns. The monarch
was the ideal head of the new nation-states of the 16th and 17th centuries; his powers were nearly
unlimited, though in Britain Parliament was able to restrict the sovereign's freedom of action,
particularly through the Magna Charta (1215) and the Bill of Rights (1689). The old idea that the
monarch represented (within the limits of his dominions) the rule of God over all things
culminated in the 17th century in the doctrine of the divine right of kings. The French Revolution
gave absolute monarchy a crushing blow, and World War I effectively destroyed what remained
of it, the rulers of Russia, Germany, and Austria-Hungary being held responsible for the war and
postwar misery. The institution developed into the Constitutional Monarchy in Western Europe,
though absolute (or near-absolute) monarchies continue to exist in the Middle East. So there are
basically two types of monarchies; absolute and constitutional monarchy, while in the latter the
monarch’s power is backed by constitution whereas in the former the monarch remains to be
above any text of law whatsoever. The institutionalization of constitutional monarch in the
Ethiopian politics had been tried at the final days of Emperor Hailesselassie I, which however
proved to be a futile attempt.
There have also been situations in which a dictator proclaimed himself Monarch of a previous
republic, thus starting a self-proclaimed monarchy with no historical ties to a previous dynasty.
The most famous example of this was general Napoleon Bonaparte who crowned himself first
Emperor of France (formerly a kingdom) after legally assuming political control of the French
Republic as First Consul for life; a blatant imitation of his empire was that of dictator Bokassa I
in the very poor Central African Empire. Thus, Republican and monarchical constitutions are
classified on their content of establishing either a dictatorship or popular government.
1.5.5 Presidential/Parliamentary Constitutions
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Again content wise, constitutions could be classified into presidential and parliamentarian ones
based on the system of government they establish. A constitution may establish a

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 presidential/congressional system of government which is a system of government where the
executive branch exists and presides (hence the term presidential) separate from the legislature
and is both unaccountable to, and cannot be dismissed in normal circumstances by the latter. It
owes its origins to the mediaeval monarchies of France and the nations of Great Britain, in which
executive authority was vested in the Crown, not in parliament. The concept of separate spheres
of influence of the executive and legislature was copied in the Constitution of the United States,
with the creation of the office of President. While Great Britain have moved to a position where
the executive is answerable to parliament, the United States maintains the concept of separation.
This has given rise to criticism of the United States presidency, with accusations that the United
States has an "Imperial Presidency". Others dispute the extent to which a real separation exists,
referring to the concept of "separate institutions sharing power".
The shared features of presidential systems:
 The president is both head of state and head of government (ceremonial power and
political/actual executive power are fused in one person-the president).
 The president has no formal relationship with the legislature. He is not a voting member, nor
can he introduce bills. However, in systems such as that of the United States, the President
has the power to veto acts of the legislature, and in turn a supermajority of legislators (by
joint session of the two houses) may act to override the veto. This practice is derived from
the British tradition of Royal Assent, in which an act of Parliament cannot come into effect
without the assent of the Monarch (the Queen).
 The president has a fixed term of office. Elections are held at scheduled times, and cannot be
triggered by a vote of confidence or other such parliamentary procedures. However, many
presidential systems incorporate provisions for the president's trial and subsequent removal
from office by the legislature if he or she is found to have committed a crime.
 The executive branch is unipersonal. Members of the Cabinet serve at the pleasure of the
president and must carry out the policies of the executive and legislative branches. However,
presidential systems frequently require legislative approval of presidential nominations to
the Cabinet as well as various governmental posts such as judges; while the president
generally has the power to issue orders to members of the Cabinet, military, or any officer or
employee of the Executive Branch, a president does not generally have the power to dismiss
or give orders to judges.
 The president often has the power to pardon or commute sentences of convicted criminals, a
power which, in systems with separate heads of state and heads of government, is generally
given to the head of state.
One final point with this regard is that many dictators style themselves ‘President’, which
constitutes at best dictatorship and not presidential system, regardless of the title used; likewise,
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some, perhaps even most, parliamentary democracies, notably Israel and Ireland, have a
president with fairly little power, however these governments do not follow the model of the
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 presidential system. We shall be coming back to the merits and demerits of this system of
government while discussing systems of government in the forthcoming module. So a
constitution that establishes a presidential system of government will have content typical of
addressing these issues that the system requires.
A parliamentary system, also known as parliamentarianism, is distinguished by the executive
branch of government being dependent on the direct or indirect support of the parliament, often
expressed through a vote of confidence. Hence, there is no clear-cut separation of powers
between the executive and legislative branches, leading to criticism from some that they lack
checks and balances that is found in a presidential republic. Parliamentarianism is praised,
relative to presidential system, for its flexibility and responsiveness to the public. It is faulted for
its tendency to sometimes lead to unstable governments, as in the German Weimar Republic and
the French Fourth Republic. Parliamentary systems usually have a clear differentiation between
the head of government and the head of state, with the head of government being the prime
minister or premier, and the head of state often being an appointed figurehead/president in our
case or hereditary monarch with only minor or ceremonial powers. However, some parliamentary
systems also have an elected president with many reserved powers as the head of state, providing
some balance to these systems (called a parliamentary republic). As a general rule, constitutional
monarchies have parliamentary systems. 57 countries over the world, together with Ethiopia, do
follow this parliamentary system either with federal or unitary state structure. See the following
table that outlines some of the important features of parliamentarian system of government.
Features of Parliamentary system:
 The executive branch of a parliamentary government is typically a cabinet, and headed by a
prime minister who is considered the head of government.
 The prime minister and the ministers of the cabinet typically have their background in the
parliament and may remain members thereof while serving in cabinet. The leader of the
leading party or group of parties, in the parliament is often appointed as the prime minister.
 In many countries, the cabinet, or single members thereof, can be removed by the parliament
through a vote of no confidence. In addition, the executive can often dissolve the parliament
and call extraordinary elections (see Article 60(1) of the FDRE Constitution).
 Because the executive is directly related to the legislature, some argue the executive is
actually more accountable than many fixed term presidential systems, as the executive, being
linked to the legislative, can face an early election in the face of the aforementioned 'vote of
no confidence'. In addition, because the executive is beholden to the legislature, it faces more
direct questioning by opposition politicians than an executive would in a presidential system.
 It can also be argued that it's relatively easier to pass legislation within a parliamentary
system since the executive and the legislature are always controlled by the same party and
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 members into alignment.
 Within presidential systems, the executive is often chosen independently from the legislature.
If the executive is of a different party from those leading the legislature, then legislative
activity can grind to a halt.
In sum a constitution that aims at establishing a parliamentary or presidential system has to have
at the minimum the task of defining the relations of the executive and the legislature and where
the balance of political power is tilted towards the legislature we call that system
parliamentarianism and the constitution a parliamentarian constitution. If it, however, tends to
make the president as the highest political power holder then it is a presidential system and its
constitution a presidential constitution.
1.6 Contents of Constitutions
As 02to the question what goes into a constitution, since the major purpose of a constitution is to
establish the main organs of a government and ensure appropriate power division among them
and also to control the exercise of governmental power, especially as affects the rights and
interests of individual citizens and those of different communities in a multiethnic community,
the constitution is supposed to set standards against which governmental actions could be
measured.
It should also reflect or take good account of the country’s geography and history, its legal
system, and existing form of government and the culture of the people. Is the country
homogeneous or multi-ethnic? What are the units of social organization and the importance given
to customary rights? And how are individual rights reconciled with group rights? are few of the
questions that need to be addressed by the constitution.

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 Brain storming questions

1/ ‘political equality’. Is the core principle of democracy.

2 /what are the two theory of political equality and explain?

 Liberal democratic theory, political equality implies an equal distribution of political

 Socialists, , link political influence to factors such as the control of economic resources and
access to the means of mass communication. From this perspective, political equality implies
not merely equal voting rights, but also a significant level of social equality.

3/ the NNP have the right to establish any time their own states an example of internal self
determination.

4/what is the major aim of the FDRE constitution preamble?

1. Creating one political community

5/list some concepts relating to constitutional law and define them.

1. Nation
2. State
3. Government
4. Democracy
5. Rule of law
6. sovereignity

6/according to Aristotle classification what are the three preferred form of gov't?
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1. monarchy,

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 2. aristocracy
3. polity
are preferred forms of government where a single person, the few or the many exercise power in
the interest of others.
7/ what are the three fold mechanisms of the NNP sovereignty will be practicable?

1. Through the constitution itself

8/what are the core functions of gov't?

The core functions of government are thus

9/ separation of power is an example of the internal checking of constitutionalism.

10PARLIAMENTARYtype of sovereignty is the legislative body has the absolute sovereign power.

11/ what are the basic and other principles of the FDRE constitution?

12/ the first republic gov't in Ethiopia was DERG [PDRE]

13/ write the preamble of FDRE cons’n.

14/ what are non derogeble right in FDRE constitution?

1,18,25,39,93
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