CONSTITUTIONAL LAW

Introduction to Constitutional Law

Constitution vs. constitutionalism
Democracy
Rule of Law

Features and functions of constitution

Sources of constitutional law
Classifications of constitutions
Contents of constitution

A brief history of constitutionalism

 Ancient Greece
 Roman Civilization
 England
 USA
 France

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 CONSTITUTIONAL LAW
What is constitution.
The fundamental and organic law of a nation or
state that establishes the institutions and
apparatus of government, defines the scope of
governmental sovereign powers, and
guarantees individual civil rights and civil
liberties.( written instrument embodying this
fundamental law, together with any formal
amendments). Black’s law 8th ed.
Constitutional law is the body of rules that
1. Establish who governs the state (mechanisms
for appointing the governors), WHO
2. Determine the functions of the state (powers
of the state), and WHAT
3. Prescribe the exercise of power (operational
procedures)[email protected]
HOW
 Constitution:- It is the supreme law of the land
 It puts an obligation on laws & other subsidiary
regulations
 Art 9(1) ” The Constitution is the supreme law of
the land. Any law, customary practice or a
decision of an organ of state or a public official
which contravenes this Constitution shall be of
no effect”
 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
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 CONSTITUTIONAL LAW
 constitutionality, The quality or state of being
constitutional. Simply defined, constitutionality is
synonymous with legality but in a very mechanical
sense.
 In determining constitutionality, one looks at the
words of the constitution and then considers the
conduct of the state, the question at all times being
whether the state has complied with the
constitution.
 If the conduct of the state conforms to the words of
the constitution that is the end of the enquiry for the
answer would be that it is constitutional.
 It does not matter that the powers provided for in
the constitution are excessive. In this regard, the
constitution is not serving the purpose of limiting
power but simply facilitating the exercise of power,
however excessive it might be.
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CONSTITUTIONALITY
 Suppose the constitution includes a clause that provides that
the state may expropriate shares held in companies operating
in industries regarded as critical and that in all such cases the
courts of law shall have no jurisdiction to hear any challenges
against expropriation.
 The state expropriate shares in companies operating in the
mining industry. By this act, all shareholders will lose their
property. it may be concluded that the state has acted
constitutionally by following the terms of the law.
 The removal of access to the court means there is virtually no
scrutiny of governmental action and no protection of the law
for individual shareholders. the state is arbitrary and prone to
abuse.
 the conduct meets the test of constitutionality in the
mechanical sense of complying with the terms of the
constitution, nevertheless considered through the broader and
more qualitative lens of constitutionalism,
 Constitutionalism is a political philosophy based on the idea
that government authority is derived from the people and
should be limited by a constitution that clearly expresses what
the government can and cannot do. It is the idea that the state
is not free to do anything it wants, but is bound by laws limited
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 Lawyers look at a constitution as a piece of law, political
scientist and politicians may like to call it with Franklin
Roosevelt “a layman’s document, not a lawyer’s contract
 One core element of constitutionalism is the legalization of
political power, the long historical process in which political
rules and public administrations became subjected to the
rules they had made, controlled by independent bodies like
courts.
 There is neither any constitutional order without this process
nor any in which this process has been fully completed the
institutional design of democratic governance requires legal
rules.
 Without them the identification of democratic membership or
the organization of democratic procedures are not possible.
Without a legal definition of egalitarian rights to participation
and to public opposition the democratic legitimacy of political
decisions cannot be guaranteed. There is no democracy
beyond constitutionalism, and there is no constitutionalism
without at least one democratic element, as we can observe
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JAMES MADISON
 the Founding Fathers of the United States Constitution, James
Madison
“In framing government which is to be administered by men over
men, the greatest difficulty lies in this: you must first enable
government to control the governed; and in the next place oblige
it to control itself. A dependence on the people is, no doubt, the
primary control on government but experience has taught
mankind the necessity of auxiliary precautions.”
 This passage confirms three critical points:
 First, that a government is necessary and that its power must be
facilitated to enable it to have control and to fulfill the interests of
the governed;
 Second, that government cannot be completely trusted with
power and that this power must therefore be restrained.
 Third, acknowledging the role that people may play in controlling
government it says that this is inadequate and unreliable and
therefore that it is necessary to create ‘auxiliary precautions’ to
control governmental power.
 constitutionalism [email protected]
synonymous with these ‘auxiliary
THE ROOTS OF CONSTITUTIONALISM
 The roots of constitutionalism go way back. It didn't just
spring up out of nowhere, but rather evolved into what it is
now.
 In 1215, King John of England was forced by a group of
wealthy nobles to sign a document called the Magna
Carta.
 The Magna Carta set certain limits on the king's power.
Magna Carta set a precedent for limited government.
 In 1689 in that year the English Bill of Rights was
signed by King William III of England.
 William III (came to power in what is called the Glorious
Revolution.
 Basically, the people of England were tired of King James
II's pro-Catholic policies and invited William (who was a
Protestant) to come invade their country and become their
new king.
 The English Bill of Rights outlined what rights English
citizens possessed, and placed limits on the monarch and
Parliament. [email protected]
SOCIAL CONTRACT THEORY
 Political theorist John Locke played a huge role in
cementing the philosophy of constitutionalism.
 Locke was an English intellectual who helped
develop the concept of social contract theory.
 According to this theory, government itself is a
sort of ''contract'' between the people and the
state, and if the state abuses its power or doesn't
hold up its end of the ''bargain'', the people have
the right to make the ''contract'' null and void.
“''That to secure these rights, Governments are
instituted among Men, deriving their just powers
from the consent of the governed, That whenever
any Form of Government becomes destructive of
these ends, it is the Right of the People to alter or
to abolish it, and to institute new Government...''
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 The contract theory, argues that the state is born out of compact
made among a number of men who come to gather to end an
intolerable state of nature. By the compact men abandon certain of
their natural rights, but only those necessary for the establishment
of a civil condition of society.
 If the establishment of government is contractual, it follows that
when government becomes tyrannical it breaks the contract.
Citizens of such a state would, therefore, have the right to remove
such a government.


 The compact, according to Lock, was made between the subjects

and the monarch to establish a common organ for the
interpretation and execution of mans rights, as existing before the
political condition was established.


 In his social contract, Rousseau made a brave attempt to build up a

logical and even in controvertible defense of democracy. If men
were born free and yet were everywhere in chains, said Rousseau,
the only means of rendering the slavery legitimate lay in the
retention of the sovereign power in the hands of the individuals
who had made the contract. The contract secured equality, thereby
each giving [email protected]
up to all gave him up to none.
RULE OF LAW
Rule of Law: The rule of law is an ambiguous term that
can mean different things in different contexts
Rule according to law; rule under law; or rule according
to a higher law.
-In one context the term means rule according to law.
No individual can be ordered by the government to
pay civil damages or suffer criminal punishment
except in strict accordance with well-established and
clearly defined laws and procedures.
-In a second context the term means rule under law.
No branch of government is above the law, and no
public official may act arbitrarily or unilaterally outside
the law.
- In a third context the term means rule according to a
higher law. No written law may be enforced by the
government unless it conforms with certain unwritten,
universal principles of fairness, morality, and justice
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RULE OF LAW
Rule of law:- A phrase as old as Aristotle
-The rule of law is a concept explain in classical time.
In Greece Aristotle wrote that
“law should be the final sovereign; and personal rule,
whether it be exercised by a single person or a body
of persons, should be sovereign in only those
matters which law is unable, owing to the difficulty
of framing general rules for all contingencies”
- The significance of the doctrine in modern times is
probably because of the writings of A.v. Dicey, who
considered that the rule of law involved three
issues:
(1) The absence of arbitrary power;
(2) Equality before the law; and
(3) Liberties and constitutional law generally are the
result of law and law made in the courts.
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Rule According to Law
 The rule of law requires the government to exercise
its power in accordance with well-established and
clearly written rules, regulations, and legal
principles. A distinction is sometimes drawn
between power, will, and force, on the one hand,
and law, on the other.
 When a government official acts pursuant to an
express provision of a written law, he acts within the
rule of law. But when a government official acts
without the imprimatur of any law, he or she does
so by the sheer force of personal will and power.
 Under the rule of law, no person may be prosecuted
for an act that is not punishable by law. When the
government seeks to punish someone for an offense
that was not deemed criminal at the time it was
committed, the rule of law is violated because the
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RULE OF LAW
 The rule of law requires that government
impose liability only insofar as the law will
allow. Government exceeds its authority
when a person is held to answer for an act
that was legally permissible at the outset but
was retroactively made illegal.
 Question
Does rule according to the law
consider abridged if the government
attempts to punish someone for
violating a vague or poorly worded law?
Reason1.
Reason 2.
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 Rule Under Law
 The rule of law also requires the government to
exercise its authority under the law. This
requirement is sometimes explained with the phrase
"no one is above the law."
- During the seventeenth century, however, the
English monarch was vested with absolute
sovereignty, including the prerogative to disregard
laws passed by the House of Commons and ignore
rulings made by the House of Lords.
 Under the Constitution, no single branch of
government in the government is given unlimited
power. The authority granted to one branch of
government is limited by the authority granted to
the coordinate branches and by the Bill of right.
 E.g , water gate conspiracy of President RICHARD M.
NIXON [email protected]
RULE OF LAW
Rule according to higher law/ no one is
above the law/
- All written laws must conform with universal
principles of morality, fairness, and justice.
-These unwritten principles of equality, autonomy,
dignity, and respect are said to transcend ordinary
written laws that are enacted by government.
-Sometimes known as Natural law or higher law
theory, such unwritten and universal principles
-E.G unfair or unjust laws. Before the Civil War, for
example, African Americans were systematically
deprived of their freedom by carefully written
codes that prescribed the rules and regulations
between master and slave.
-

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QUESTIONS FOR DISCUSSION
 Do such repugnant laws comport with the
rule of law?
 - Can a government deprive its citizens of
fundamental liberties so long as it does so
pursuant to a duly enacted law.?

English jurist sir Edward coke said that

"when an act of Parliament is against
common right and reason, or repugnant,
or impossible to be performed, the
common law will control it, and adjudge
such act to be void

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DEMOCRACY
During classical time often democracy is defined
opposite to other types of government:
 Monarchy :- Government by a single ruler
(king/queen, emperor)
 Aristocracy :- Government by noblemen
(hereditary)
 Oligarchy Government by few persons
 Theocracy:- "Government by God" (in reality
this means government by religious leaders)
 Dictatorship :-Government by people, that have
seized power by force (often: military
dictatorship)
( I think Gaddafi is z last dictator) Do u think
is there any other dictator in the world now a
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MODERN REGIME CONTRDICT TO DEMOCRACY
 Totalitarian regime
Government by a little group of leaders on the basis of an ideology,
that claims general validity for all aspects of life and usually attempts
to replace religion. The regime does not tolerate any deviation from
its state ideology. Regime opponents are persecuted, tortured,
detained in concentration camps and members of ethnic minorities
are killed in mass executions (genocide). Historic examples of
totalitarian regimes include: National Socialism (Germany under
Hitler, 1933-1945) and Stalinism?.
Authoritarian regime
 Government by a little group of leaders. In contrast to totalitarian
regimes, authoritarian regimes have no distinct state ideology and
grant some amount of freedom (e.g. economic and cultural) as long
as their rule is not jeopardized. The most important goal of
authoritarian regimes is the maintenance of power and the personal
enrichment on cost of the country and its population. PFUJ?
Theocracy
 "Government by God": in reality this means government by religious
leaders. Usually a certain interpretation of ancient religious laws
replaces modern forms of law and is enforced with utmost severity.
Example: Islamic Republic of Iran. Islamic sate ?

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DEMOCRACY
U.S. president Abraham Lincoln (1809-1865) defined
democracy as:
«Government of the people, by the people, for the
people»
 Democracy is by far the most challenging form of
government - both for politicians and for the people.
 The term democracy comes from the Greek language and
means "rule by the (simple) people".
 The so-called "democracies" in classical antiquity (Athens
and Rome) represent precursors of modern democracies.
Like modern democracy, they were created as a reaction
to a concentration and abuse of power by the rulers.
 Yet the theory of modern democracy was not formulated
until the Age of Enlightment (17th/18th centuries), when
philosophers defined the essential elements of democracy:
 separation of powers, basic civil rights / human rights,
religious liberty and separation of church and state.
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 MAJOR PILLARS OF DEMOCRACY
 The following are the major principles of
democracy:
a) The Principle of popular sovereignty
/popular democracy
b)Rule of Law and Supremacy of the
Constitution
C) Principle of Equality of all Persons before
the law
d) Principle of Majority Rule Minority Rights
e) Principle of Individual Rights and Freedoms
f) Principle of Transparency and
Accountability
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KEY ELEMENT OF DEMOCRACY
In order to deserve the label modern democracy, a country
needs to fulfill some basic requirements - and they need
not only be written down in it's constitution but must be
kept up in everyday life by politicians and authorities:
A. Guarantee of basic Human Rights to every individual
person vis-à-vis the state and its authorities as well as
vis-à-vis any social groups (especially religious
institutions) and vis-à-vis other persons.
B. Separation of Powers between the institutions of the
state:
Government [Executive Power],
Parliament [Legislative Power] und
Courts of Law [Judicative Power]
C. Freedom of opinion, speech, press and mass media
D. Religious liberty
E. General and equal right to vote (one person, one
vote)
F. Good Governance (focus on public interest and
absence of corruption
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DISCUSSION QUESTION
«No one pretends that democracy is perfect or
all-wise. Indeed, it has been said that
democracy is the worst form of government
except all those other forms that have been
tried from time to time»
What you really understand from the above
statement?
 This famous quote attributed to the former British
prime minister Sir Winston Churchill (1874-1965)
focuses right on the weak spot of democracy:
 There is no such thing as the "perfect form of
government" on earth, but any other form of
government produces even less desirable results
than democracy. Until today, no other form of
government has been invented that could regulate
public affairs better than democracy.
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STATE AS A JURISTIC PERSON

 Historically state is emerged from socio-

economic construct
 In political science, 4 fundamental elements
state comprises is people(permanent
population), definite territory, sovereignty &
political power(government ).
 The principle laid by International Law is that
wherever a person or a thing is on or enters into that
territory, the person or the thing is subject to the
jurisdictional authority of the state.
 The exceptions are; state condominium (jointly
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… CONT’D
 Difference between a federation &confederation is
that;
 in federation, the incidence of linkage is strong that makes
it possible to have authority on the individual citizen of the
member state & as such it is endowed with legal
personality in the eyes of int’l law.
 The fact that the laws made by member states can
derogate the law made by the center is generally
characterizes confederation
Questions that matter
- Is Palestine presently a state in terms of territoriality,
community of people, sovereignty?
Palestinian territories", or "occupied Palestinian
territories", terms referring to the West Bank
(including East Jerusalem) and the Gaza Strip which
are occupied or otherwise under the control of Israel
- What are the attributes of the European Union, which
may prompt one to characterize it as confederation?
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SOVEREIGNTY IN THE CHANGING WORLD
 Unlike the past, sovereignty of the state does not
arise from any divine power or status strength,
 but from delegation of power by the people to the
state
 Forms of sovereignty in international law are:

a. Internal or Territorial Sovereignty

 Each state has exclusive domestic jurisdiction and the
monopoly of power over its territory and national
b. External Sovereignty
 States are not subjected (against its will) to another
state or to any higher authority.
 The Limitation on the international relation is that
states shall refrain from threatening or using force,
oblige to co-operate with one another, abide by the
principles of equal rights and self-determination of
peoples.
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… CONT’D
c. Sovereign Equality
 All states are juridical equal, in the sense that,
formally they have identical rights at the
international level Ethiopia vs. US
d. Extraterritorial Sovereignty
 State has an extraterritorial Sovereignty to
impose their home policies on foreigners and
their properties within their territories.
e. Permanent Sovereignty over Natural
Resources
 every state can freely dispose of the natural
wealth and resources within its territory.
 Yet, rights have duties

e.g. Environment protection

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THE CONCEPT OF NATIONALITY
 Citizenship is the status of a person recognized
under the custom or law as being a legal member
of a sovereign state.
 A person may have multiple citizenships and a
person who does not have citizenship of any state
is said to be stateless.
 Nationality is often used as a synonym for
citizenship in English notably in international law
–
 although the term is sometimes understood as
denoting a person's membership of a nation (a
large ethnic group).
 The Concept of Nationality is the quality of being
a subject of a certain state.

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 The five most common modes of
acquiring nationality are:-
- birth,
If one or both of a person's parents are
citizens of a given state, then the person may
have the right to be a citizen of that state as
well.
-Naturalization: The most important mode
of acquiring nationality besides by birth is
that of naturalization. When a person
living in a foreign state acquires the
citizenship of that state then it is said to
be acquired through naturalization..
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Naturalization may take place through different acts.
 (i) Marriage-- marriage to a foreign national
 (ii) legitimating or adoption of children
 (iii) acquisition of domicile
 (iv) appoint as govt. official

The condition for naturalization found in municipal

laws vary from country to country. Residence for a
certain period of time is the most common
requirement
Article 6 of FDRE
1. Any person of either sex shall be an Ethiopian
national where both or either parent is Ethiopian.
2. Foreign nationals may acquire Ethiopian
nationality. Particulars relating to nationality shall
be determined by law.
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- Exclusion of ascertain group from having citizenship
. Old time Slaves
- Modern examples include some Arab countries
which rarely grant citizenship to non-Muslims, e.g.
Qatar is known for granting citizenship to foreign
athletes, but they all have to profess the Islamic
faith in order to receive citizenship.
- Reintegration- When two independent state comes to
one.
- Subjugation/annexation
When a state is defeated or conquered, all the
citizens acquire the nationality of the conquering
state.
Cession/Succession
When a state has been ceded in another state, all the
people of the territory acquire the nationality of the new
emerged state. SOUTH SUDANESS
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WHAT A CONSTITUTION SHOULD CONTAIN

 major purpose of a constitution is to establish the

main organs of a government, ensure power division
and control the exercise of governmental power
 thus, it should set standards against which
governmental actions could be measured.
 It should 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? etc.
 The open process of decision-making and
referendums are optimal methods for ensuring public
participation
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THEORIES AND DOCTRINES OF
THE CONSTITUTION
 There are four so called guiding principles that
are considered to underpin our constitution,
namely:-
Democratic Governance
 This is the idea that the people are governed by
the people (or at least by appointed
representatives / delegates) for the benefit of
the people. For this to be the case, the
constitution needs to establish mechanisms to
hold the appointed representatives to account.
Art.8 Art.12
Sovereignty of People
 A sovereign, self governing people, is free to
exercise its will to legislate howsoever it pleases
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The Separation of Powers
 There are three central functions or organs of
state, namely the Executive, the Legislature and
the Judiciary.
 The notion is that since
 “power corrupts and absolute power corrupts
absolutely”, power should either be shared out
between separate and distinct bodies or
alternatively that measures are adopted to ensure
that whilst each organ can cooperate with the
other organs, no one organ will be
subservient/submissive /to any other.
 A legislature that could also act as prosecutor,
judge, jury and executioner could command total
power without responsibility or accountability.
 FDRE constitution Chapter 6, Chapter 7, Chapter 8
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CLASSIFICATION OF CONSTITUTION
Codified /un Unitary or
Written or codified Federal. Flexible or
unwritten. FDRE vs PRDE Ridged
Compare UK UK vs FDRE
and US –

Separated or Unicameral / Presidential/ Monarchical

fused powers. Bicameral Parliamentary or
Classification Republican
Saudi vs
Israel

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CLASSIFICATION OF CONSTITUTION
1. By looking at the Nature of the Constitution
itself:
It is a traditional approach
A. Written /unwritten, codified/unc odified
 It’s a false distinction. this classification as a valid
classification by considering it as dealing:
 First- with the degree of codification,
 second- with the degree of written detail, and
 thirdly- with the origin of the written text of the
documents.
 Written constitution designates a complete
document in which the framers of the constitution
have attempted to arrange for every foreseeable
contingency in its operation.
 Unwritten constitution is one which has grown
up on the basis of custom rather than of written
law statutes play the major role here.
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CLASSIFICATION CON’T
B. Rigid/flexible,
Conditional/unconditional Classification
 A written constitution is a standard of reference
for classifying as rigid or flexible .
Q. what is it that makes a constitution rigid or
flexible?
 Whether or not its making is identical to the
making of other ordinary laws
 i.e, if the amendment or alteration procedure of a
constitution is made to depend on some
conditions or special procedures then it is a rigid
constitution
 flexible constitutions have elasticity as they
can be bent and altered in form without any need
to fulfill some conditions while retaining their main
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CLASSIFICATION CON’T
2. By looking at the Nature of the State itself:-
Federal/Unitary classification
 this classification of constitutions relates to the method by
which power is divided between the two liers of
governments
 government of the whole country and local governments

In a federal constitution, powers of governments are

divided between government for the whole and
governments for parts of the country in such a way that
 each government is independent and none is subordinate to
the other, and legislature in both cases have limited powers
In a unitary constitution the legislature of the whole
country is the supreme law-making body and
 it has the mandate to allow other legislatures to exist and
exercise their powers while reserving the right to overrule
them as they are subordinate to it.
A confederate constitution exists If the government of the
whole country is rather subordinate to the governments of
the parts [email protected]
CLASSIFICATION CONT’D
3. By looking at the nature of the Government itself
1. Presidential/Parliamentary Classification
 the executive formulates policies and execute same
upon gaining the sanction of the law through legislature
 thus to protect executive’s misuse/abuse of power, the
executive should necessarily be answerable to
somebody,
 to the legislature or to the public. it Depends on whether
the executive is accountable to the parliament and
president
In presidential executive, there is a rigid separation of
institutions from the bottom upwards.
 Hence the president and his subordinates may not sit in
the congress (legislature).
parliamentary executive, although the great majority of
the members of the executive are excluded from the
parliament, the heads of department and ministers may
sit in the parliament and hence may be accountable to
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CLASSIFICATION CONT’D
B. Republican/Monarchical Classification
 where the head of state is a president, then that state
is a republic, and
 where the head of state is a king, that state is a
monarchy or a kingdom. nowadays it has diminished
4. By looking at the Legislature
Unicameral/Bicameral/Tricameral/Tetracameral
A. Unicameralism have only one legislative or
parliamentary chamber.
 It exists often with small and homogeneous countries
 A view in favor of unicameral legislatures is that if an
upper house is democratic, it simply mirrors the equally
democratic lower house, and is therefore duplicative &
holds that functions of a second chamber
 such as reviewing or revising legislation, can be performed
by parliamentary committees, while further constitutional
safeguards can be provided by a written constitution
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CLASSIFICATION CONT’D
B. Bicameralism
 in USA, the upper house would have states represented
equally, and the lower house would have them represented.
 The r/n ship b/n the two chambers varies; in some
cases,
 they have equal power (in federal systems and those with
presidential governments),
 while in others, one chamber is clearly superior in its powers
(in unitary states with parliamentary systems)
 The bicameral system, is a method of combining the
principle of democratic equality with the principle of
federalism.
 all citizens are equal in the lower houses, while all
states are equal in the upper houses
 There are also instances of bicameralism in countries
that are not federations, but which have upper houses
with representation on a territorial basis. For example, in
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CLASSIFICATION CONT’D
C. Tricameralism
 Tricameralism is the practice of having three
legislative or Parliamentary
 The term was used in South Africa to describe the
Parliament established under the apartheid
regime's new constitution in 1983
 The South African trilateral parliament consisted
of three race-based chambers:
1. House of Assembly — 178 members, reserved
for whites
2. House of Representatives — 85 members,
reserved for coloured, or mixed-race, people
3. House of Delegates — 45 members, reserved
for Asians

[email protected]
CONSTITUTIONAL DEVELOPMENT IN US
 The war resulted from an economic regime which the American
colonists regarded as tyrannical.
 Their slogan was “no taxation without representation" The
representation of the American colonies in the parliament at
Westminster at that time was a manifest impossibility.
 So, the American war of independence broke out and ended in
the establishment of a new political entity known as the United
States of American founded upon a constitution promulgated in
1787.
 This constitution embodied the principles enunciated in the
Declaration of Independence. This is the beginning of modern
documentary constitutionalism.
 It would not, perhaps, be possible to assert that Rousseau’s
influence was directly felt by the Americans.
 It would be nearer to the truth, probably, to say that the
fathers of the constitution were continually informed by the
same spirit as that which inspired Rousseau’s political
philosophy.
 But, Rousseau was directly behind those who led the early
movements of [email protected]
French Revolution.
 CONSTITUTIONAL DEVELOPMENT FRANCE
 When the bankrupt government of France in 1789 resorted to
the expedience of recalling into existence the Estates
General, which had not met since 1614, it carried into the
forum all the idealistic dogmas of Rousseau and his followers,
and thus brought them in to practical conjunction with the
promulgation of a political constitution.
 The national assembly of 1789 thus drew up the “Declaration
of the Rights of Man and of Citizen” before coming to its
proper business of making a constitution.
 This document was saturated with the dogmas of the
contractual origin of the state, sovereignty and of individual
rights
 The constitution, which followed in 1791, and to which this
declaration was prefixed, did not last, because the legislative
Assembly to which it gave birth was unaided to deal with the
state of anarchy that developed within France and the state
of war without.
 Nevertheless, this is the second great stage in the
development of modern documentary constitutionalism as
the American Revolution is the first.
[email protected]
BERIEF HISTROY OF CONSTITIUTIONALISM
THE BASIC PRINCIPALS OF THE
CONSTITUTION OF USA?
 Popular Sovereignty
 Government power resides in the people
 Limited government
 Government is not all powerful, can only do
what the people let it.
 Separation of Powers
 Helpsprevent one branch from becoming too
powerful
 Checks and Balances
 Federalism
 Division
of power among national and state
governments
[email protected]
CHAPTER II: UNDERLYING
POLITICAL VALUES
 Liberalism
 Republicanism
 Communitarians System
 Democracy Revisited : theories, Justifications and
critiques
Discussion question
What does mean democratic developmentalism ? Is
it a political ideology or political system?
- Democratic Developmentalism (DD) is defined to
be “a political regime in which a developmental
party remains in power for a long time by
consecutively winning free elections which permit
multiple parties, under which policies that punish
rent seeking and encourage productive investment
are implemented with a strong state guidance.”
[email protected]
POLITICAL PARTIES
 A political parties is a group organized for the
purpose of achieving and exercising power with in
political power either by election or revolution.
 An interest group (or special interest group) is any
aggregate of individuals who, bound by one or
more shared concerns or wants, makes claims up
on society in general in order to maintain or
promote its position or objective.
 Political parties originated in Europe and USA in the
19th centaury
 Europe and America parties depend on mass
support
 In Africa parties leadership related to tribal or
ethnic basis
 In Asia religious factors or by affiliation with ritual
brotherhood [email protected]
TYPES OF POLITICAL PARTIES
 Fundamental distinction can be made between
cadres parties and mass based parties
 Cadre parties:- dominated by politically elite
groups of activists
 These create conflict between
Aristocracy:- land owners, traditionalists
clergy
Bourgeoisie:- industrialist, merchants,
traders, bankers, financers & professional people
 Both develop their own ideology liberal and
conservatives
 Bourgeoisies liberal ideology:- clamouring( shout or
demand loudly) for formal legal equality and
acceptance of the inequities of circumstance./ John
Loke/
[email protected]
 Conservative ideology – focus on maintaining
former status quo.
 In U.S both federalist, anti federalist, democrat
and republican all belonged to liberal ideology
but different in the means the uses to realize
their beliefs
MASS BASED POLTICAL PARTIES
 cadre parties normally organize o relatively
small number of parties adherents, mass based
parties on the other hand , unite hundreds of
thousands of follower, sometimes millions. Not
the number, the essential factor is that such
party attempts to base it self on an appeal to
masses.
E. g [email protected]
parties are mass based parties
 Feature of communist parties
- Democratic procedure in the choice of parties
- Communist group formed their cells in the place of work. The
work place cell was the first original element in communist
party organization ( firm, work shops , store, school,
university).
 Party members thus tended to be tightly organized their
solidarity, resulting from common occupation, being stronger
than that based upon residence.
 There is a danger to go on their separate way. Therefore, it is
necessary to have a very strong party structure for party
leaders to have extensive authority. If the groups are to resist
such centrifugal pressure
 Centralization
there is principle of free discussion, which supposedly
developed at every level before the decision is made, but
afterward all must adhere to the decision that has been made
by the central body.
 The splintering that has form time to time divided or paralyzed
the socialist parties is forbidden in communist parties. Which
[email protected]
 Further distinctive characteristic of communist parties in
the importance given to ideology./ Primary concern of the
party being to indoctrinate it’s members with Marxism
 Fascist parties:- their teaching was authoritarian and
elitist. They thought that societies should be directed by
most talented and capable people by an elite.
DISSUSSTION
- How we distinguished revolutionary parties from
democratic one?
- Theoretically, revolutionary parties attempt to gain
power by violence( Conspiracies, guerrilla warfare)
- democratic working with in the legal frame work of
election.
- What is the purpose of terrorist and disruptive activity in
struggle for power?
- It serves to mobilize citizens and demonstrate the
powerlessness [email protected]
any government
LIBERALISM
 “By definition a liberal is a man who believes in liberty
 Liberals have typically maintained that humans are
naturally in “a State of perfect Freedom to order their
Actions…as they think fit…without asking leave, or
depending on the Will of any other Man”
 Liberalism is a political philosophy or worldview founded
on ideas of liberty and equality. Whereas classical liberalism
emphasizes the role of liberty, social liberalism stresses the
importance of equality.
 Liberals espouse a wide array of views depending on their
understanding of these principles, but generally they
support ideas and programmes such as freedom of speech,
freedom of press , freedom of religion ,free market, civil
rights, democratic societies ,secular governments, gender
equality, and international corporation.
 Liberalism rejected the prevailing social and political norms
of hereditary privilege, state religion, absolute monarchy,
and the Divine Right of Kings
[email protected]
 The 17th-century philosopher John Locke is often
credited with founding liberalism as a distinct
philosophical tradition. Locke argued that each
man has a natural right to life, liberty and
property, while adding that governments must
not violate these rights based on the social
contract.
 Liberalism started to spread rapidly especially
after the French Revolution
 Opponents of liberalism – conservatism old
enemy - fascism – communism
 Baron de Montesquieu pleaded in favour of a
constitutional system of government, the
preservation of civil liberties and the law, and the
idea that political institutions ought to reflect the
social and geographical aspects of each
community. [email protected]
particular, he argued that political
 Montesquieu advocated that the executive, legislative,
and judicial functions of government should be
assigned to different bodies. He also emphasised the
importance of a robust due process in law, including
the right to a fair trial, the presumption of innocence
and proportionality in the severity of punishment
 The development into maturity of classical liberalism
took place before and after the French Revolution in
Britain, and was based on the following core concepts:
 classical economics, free trade, laissez-faire
government with minimal intervention and taxation
and a balanced budget. Classical liberals were
committed to individualism, liberty and equal rights.
The primary intellectual influences on 19th century
liberal trends were those of Adam Smith and the
classical economists, and Jeremy Bentham and John
Stuart Mill.
[email protected]
 Government should be limited to defense, public works
and the administration of justice, financed by taxes
based on income.
 Social liberalism
By the end of the nineteenth century, the principles of
classical liberalism were being increasingly challenged
by downturns in economic growth, a growing
perception of the evils of poverty, unemployment and
relative deprivation present within modern industrial
cities, and the agitation of organized labour.
 The ideal of the self-made individual, who through
hard work and talent could make his or her place in the
world, seemed increasingly implausible.
 A major political reaction against the changes
introduced by industrialization and laissez-faire
capitalism came from conservatives concerned about
social balance, although socialism later became a more
important force for change and reform
[email protected]
 Socialism is a range of economic and social
systems characterized by social ownership and
democratic control of the means of production.
 Social ownership may refer to forms of public,
collective, or cooperative ownership; to citizen
ownership of equity; or to any combination of these
 By the late 19th century, and after further
articulation and advancement by Karl Marx and his
collaborator Friedrich Engels as the culmination of
technological development outstripping the
economic dynamics of capitalism, "socialism" had
come to signify opposition to capitalism and
advocacy for a post-capitalist system based on
some form of social ownership of the means of
production
[email protected]
REPUBLICANISM
 Republicanism is an ideology of being a citizen in a
state as a republic under which the people hold
popular sovereignty. Many countries are "republics"
in the sense that they are not monarchies
 According to republicanism the paramount republican
value is political liberty, understood as non-
domination or independence from arbitrary power.
 Republicanism common ideas and concerns are , the
importance of civic virtue and political participation,
the dangers of corruption, the benefits of a mixed
constitution and the rule of law, etc
 However, mixed government was considered ideal.
First Plato and Aristotle, and then Cicero, developed
the notion that the ideal republic is a mixture of
these three forms of government democracy,
aristocracy, and monarchy.
[email protected]
 Niccolò Machiavelli:- The prince
 Liberalism and republicanism were frequently conflated,
because they both opposed absolute monarchy.
 An important distinction is that, while republicanism
stressed the importance of civic virtue and the common
good, liberalism was based on economics and
individualism
 In contemporary usage, the term democracy refers to a
government chosen by the people, whether it is direct
or representative.
 Today the term republic usually refers to a
representative democracy with an elected head of state.
 Such as a president, who serves for a limited term; in
contrast to states with a hereditary monarch as a head
of state, even if these states also are representative
democracies, with an elected or appointed head of
government such as a prime minister
[email protected]
 DEMOCRACY “Rule of the commoners", was
DEMOCRACY REVISITED :
THEORIES, JUSTIFICATIONS AND CRITIQUES

originally conceived in Classical Greece, whereby

political representatives were chosen by lot (as in a
jury) from amongst the male citizens: rich and poor.
In modern times it has become equated to elections
or "a system of government in which all the people
of a state or polity....elect representatives to a
parliament or similar assembly
 According to scholars , democracy consists of four
key elements:
(a) A political system for choosing and replacing the
government through free and fair elections;
(b) The active participation of the people, as citizens,
in politics and civic life;
(c) Protection of the human rights of all citizens, and
(d) A rule of law, in which the laws and procedures
apply equally to all citizens
[email protected]
 Democracy requires three fundamental principles:
(1) upward control, i.e. sovereignty residing at the lowest
levels of authority,
(2) political equality, and
(3) social norms by which individuals and institutions only
consider acceptable acts that reflect the first two principles
of upward control and political equality
 Majority rule is often listed as a characteristic of
democracy. Hence, democracy allows for political minorities
to be oppressed by the "tyranny of the majority" in the
absence of legal protections of individual or group rights.
 An essential part of an "ideal" representative democracy is
competitive elections that are substantively and
procedurally "fair," i.e., just and equitable. In some
countries, freedom of political expression, freedom of
speech, and freedom of the press are considered important
to ensure that voters are well informed enabling them to
[email protected]
FORMS OF DEMOCRACY
 DIRET DEMOCRACY
One form of democracy in which all eligible citizens have active
participation in the political decision making, for example voting on
policy initiatives directly.
- Switzerland has a direct democracy system and votes are organized
about four times a year
- In Switzerland, without needing to register, every citizen receives
ballot papers and information brochures for each vote (and can send it
back by post).
IN OTHER COUNTRIES
Modern-day representative governments, certain electoral tools like
referendums, citizens' initiatives and recall elections are referred to as
forms of direct democracy
 REPRESENTATIVE FORM
In most modern democracies, the whole body of eligible citizens
remain the sovereign power but political power is exercised indirectly
through elected representatives.
characteristic of representative democracy is that while the
representatives are elected by the people to act in the people's
interest, they [email protected]
the freedom to exercise their own judgment as
CHAPTER III: CONSTITUTIONAL
DEVELOPMENT IN ETHIOPIA
 3.1 Constitutional development of
traditional Ethiopia till 1931
 Constitutional development in other parts
of Ethiopia
 The 1931 Constitution
 The 1955 Revised Constitution
 The 1974 Draft Constitution
 The Proclamation establishing the PMAC
 The 1987 PDRE Constitution
 The Transitional Charter

[email protected]
 An Ethiopian historian in the following
words beautifully elucidated the imperial
omnipotence:
 “The kings of Abyssinia are above all
laws, they are supreme in all causes,
ecclesiastical and civil, the land and
persons are equally their property -------if
(one) bears a high rank it is by the kings
gift”

[email protected]
DEVELOPMENT OF DOCUMENTARY
CONSTITUTION
Ancient and Medieval Documents of Constitutional Nature
The Ser’ata Mengist
The most real decrees of the Sar‟ata Mangist were:
1. Kings Coronation;
2. According to a custom initiated by King Amda Seyon, the
daughters of Zion bar – the way of the new King with a rope when
he goes to Axum to be crowned, and
3. Queens coronation (on Sundays);
The Fetha Nagast
 Law of the Kings‟, is a collection of laws which in use in Christian
Ethiopia for many centuries.
 It was originally written in Arabic by the Coptic Egyptian writer
Ibn al-Assal
 It has two distinct parts, The first dealt with religious matters and
the second with secular matters

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1931 CONSTITUTION AND 1955
REVISED CONSTITUTION
 The tendency towards centralization and the formation of nation-
state picked up pace in the second half of the nineteen century
 In 1896, the Italia‟s attempt to colonize Ethiopia collapsed at the
battle of Adwa. This set a new historical propelling event.
 Menelik in 1908 created the first ministerial frame work in the
history of Ethiopia.
The 1931 Constitution: the Japanese Paradigm
 relying heavily on the constitution of Japan(The Meiji Const)
 The first and foremost political dynamics of that period was
centralization with a view to build a nation-state. Japan was
homogenous people
 The Constitution was meant to serve as an instrument of
centralization under the Emperor
 The Constitution was not intended to serve as instrument of
modernization.
 In general it was a mere confirmation of the powers and
prerogatives of the Emperor

[email protected] A. Lectuer @ Haramaya Unive 11/23/2024 65

THE 1955 REVISED CONSTITUTION
 the Westminster Paradigm and the Aborted Reform thereof
(seemingly constitutional monarchy)
 West Minister model is a political theory and a constitutional
framework brewed and distilled in Britain
 the revised Constitution of 1955 was largely the cumulative and
resultant effect of external and internal pressures
 The train of events in favor of modernization was further
enhanced by the federation of Eritrea with Ethiopia by UN res.
 the Const. incorporated the basic tenets of fundamental human
and political rights from UDHR to which Ethiopia was then a
signatory
 The legislative body was bi-cameral:
 senators were appointed from the nobility and a few from the
commons for their meritorious achievements, while
 The deputies were directly elected from equally populated
voters
 the Const. was declared to be the supreme law of the Em.pire for
the first time
[email protected] A. Lectuer @ Haramaya Unive 11/23/2024 66
THE 1974 REVOLUTION AND THE 1987
CONSTITUTION
 Since 1974 a new social order was in the making.
 The Provisional Military Administration was also in the
process of reconstituting itself.
 Rural and urban lands were nationalized. All private
production and distribution enterprises were brought
under the ownership and control of the state.
 The country became the Peoples Democratic Republic of
Ethiopia.
 The national “Shengo” (Parliament) was modeled after
the Supreme Soviet of the U.S.S.R.
 The president enjoyed a lot of power. He was the Head of
State and had no less power than any head of
Government.
 This Constitution does not merit so much discussion
because it died well before it was born.

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THE TRANSITIONAL CHARTER, 1991:
 Reverse Approach to Nation-State Formation
Prelude to Federalism
 It has as completely changed the structure of the State;
 i.e., from a unitary to a federal structure, though it
was’t mention in an explicit manner, it can be inferred
from the charter it self and subsequent proc.
 Although the Charter mentioned nothing about
federalism, from the rights given to the
 „nations, nationalities and peoples
 The Charter also guaranteed each nation, nationality
and peoples the right to administer its own affairs
within its own defined territory and
 Effectively participate in the central government on the
basis of freedom, and fair and proper presentation.

[email protected] A. Lectuer @ Haramaya Unive 11/23/2024 68

CHAPTER IV: THE FDRE CONSTITUTION : OVERVIEW, PRINCIPLES
AND HISTORY
 The making of the FDRE Constitution
 overview and Salient features of the FDRE
Constitution
 Fundamental principles of the FDRE
constitution
 Policy objectives under the FDRE
Constitution
 Status of international instruments under the
FDRE Constitution
 Challenges to constitutionalism in Africa:
focus on Ethiopia

[email protected]
DIMENSIONS IN RESPECT OF
NATION, NATIONALITY AND
PEOPLES OF ETHIOPIA
Putting the Conflict in Perspective
 Cause of state failure & prolonged war in Ethiopia in the 20th
Century / the conflicting interpretations over the state crisis
that ensued after Menilik’s coming to power /
 Over centralization of power and economic resources
by the „dominant‟ group from Showa, this defined itself and
the State along its narrow line and marginalized the others,
which led to too strong feelings of ethnicity.
 The conflict should not be characterized as ethnic.

The Other Perspective

 These are three other versions of analysis of z conflict,
namely
1. the colonial approach / OLF is the proponents of the colonial
approach,
2. „Greater Ethiopia‟ (or Nation Builders) and
3. „National oppression
[email protected] A. Lectuer @ Haramaya Unive 11/23/2024 70
THE NATIONAL OPPRESSION
THESIS AND THE QUESTION OF
NATIONALITIES
 By identifying the Showan Amhara as the single ‘oppressor
nation’,/others are the ‘oppressed nations’
 the ‘ethno-nationalist movements ’preferred to define their course
of struggle on the basis of ‘nationality’ than class assimilation
Coming together & holding together
 Coming together: when the regions choose to form a single
federal polity
 Holding together: the central government devolved political
authority to the regions to maintain a single unified state.
One identity or many:
 Mono-national or “national” federations assert a single
national identity, as in Australia, Austria and Germany,
 Multi-national federation, such as Malaysia and Switzerland,
constitutionally recognize multiple identities. Other states
combine the two. India and Spain

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CON’T
Symmetric or Asymmetric:
 Symmetric (all z constituents have identical power ),In
symmetric federalism the constituent units have
identical, that is symmetric, powers, relations and
obligations relative to the central authority and each
other; example, Australia.
 In asymmetric federalism some provinces enjoy
different powers. For example In Canada for Quebec.
 In “asymmetric” federal systems, the powers
granted to subunits are not identical. Some regions
have different areas of autonomy from the others.
 This allows greater flexibility to respond to distinct
demands and to accommodate diversity.

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 CHAPTER V: THE MAKING AND
AMENDMENT OF CONSTITUTIONS

 The making of constitutions

 Amendment of constitutions
 Amendment under the FDRE
Constitution

[email protected]
CHAPTER VI: FORMS OF GOVERNMENT
AND ELECTORAL SYSTEMS
 The presidential system
 The parliamentary system
 The semi-presidential system
 Reflections on the Ethiopian Constitution
 Electoral systems: an overview
 Consideration of the Ethiopian electoral
regime

[email protected]
FORMS OF GOVERNMENT AND
ELECTORAL SYSTEMS
The presidential system
 It is a system of government where an executive
branch exists and presides
 Under this political system the president is both the
Head of State and the Head of Government.
 The incumbent for the position of presidency is
elected nation - wide at a time that has been
predetermined in the constitution
 the president is said to enjoy a direct mandate from
the people and hence is not accountable to the
parliament and
 the parliament cannot dismiss him have on
exceptional grounds through a process known as
impeachment
[email protected] . Lectuer @ Haramaya
University 11/23/2024 75
… CON’T
Parliamentary System
 It is system of gov't in w/h the executive is dependent on
the direct or indirect support of the legislature (the
parliament) often expressed through a vote of confidence.
Feature
 Absence of clear-cut separation of power between the
executive and the legislative
 have a distinct heads of state (president ) and head of
government (prime minister )
 ministers are members of the parliament although not the
case in all countries
 a political party or coalition of parties which has the largest
seat in the parliament will constitute a government
 The government as a whole is not directly elected by the
voters but is appointed from amongst the representatives

[email protected] A. Lectuer @ Haramaya Unive 11/23/2024 76

… CON’T
Merits
 since a party or coalition of parties which has won
majority vote in the parliament forms government,
 the executive- legislative relation is one of co-
ordination. thus, is preferable for countries with an
infant democracy.
 easier to pass legislations, since the executive branch is
dependent upon the direct or indirect support of the
legislative .
Demerits
 the Head of Government is not directly elected

 Absence of clear distinction /separation of power

between the executive and the legislative &
 it places too much power in the executive

[email protected] A. Lectuer @ Haramaya Unive 11/23/2024 77

… CON’T
Electoral systems
Q) What are requirements for legibility to vote?
Age, nationality. sound mind (not insane).
Types and Features of Electoral systems
 types of elections corresponding to different
layers of public governance or geographical
jurisdiction.
 This includes: Presidential election, general
election, primary election, by- election etc
 Electoral systems can be categorized as
majoritarian, proportional and mixed
representation system

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CHAPTER VII: HORIZONTAL AND VERTICAL DIVISION
OF
 • POWER
The concept and development of separation
of powers
 • Separation of powers in parliamentary and
presidential systems
 • Separation of powers under the FDRE
Constitution
 • The structure, composition and functions of
Federal Organs
 • The Executive, the Legislature and the
Judiciary
 • Vertical division of power

[email protected]
VERTICAL AND HORIZONTAL
DIVISION OF POWER
Form and Scope of Distribution of Powers
 The constitutional allocation of legislative power is
defined on the basis of three categories;
 namely, exclusive powers (of the federal
government and/or of the states), concurrent
powers and reserve power.
 The Ethiopian Constitution in general follows the
United States‟ and Swiss‟ forms of distribution of
powers.
 The Ethiopian federal system appears to
reflect some aspects of coming together as
well as holding together. Although it is a fact
that none of the constituent states existed
as [email protected]
 entity, owing to the aggregate nature of the
federation, the federal government appears to
be one
 with enumerated and limited powers and
the federation is based on the
accommodation of
 diversity within the various Ethiopian Nations,
Nationalities and Peoples existent at the time of
 ratification by the Constituent Assembly.
 It is the states that hold residual powers as per
Article 52(1), excepting the power of taxation,
for
 undesignated powers of taxation are as per
Article 99 left to the determination of HPR and
HoF.
[email protected]
 Thus Article 99 should logically be treated as an
exception to Article 52(1).
 It is worth noting that the powers granted to the
federal government are not limited to the list
 under Article 51. It might appear that by virtue of
the reserve clause, any power not mentioned
 under article 51 belongs to the states, but other
provisions of the Constitution also indicate
 additional powers entrusted to the federal
government. powers seem to be additional; i.e.
under
 Article 55, 74 and 77

[email protected]
 So the reserve power of the states only applies after
discounting all power of the federal government
distributed throughout the Constitution.
 The Constitution empowers the federal government to
“formulate and implement the country‟s policies,
strategies and plans in respect of overall economic,
social and development matters. ..
 Establish and implement national standards and basic
policy criteria for public health, education, science and
technology..”.
 The same Constitution also empowers the states,
among other things, “to formulate and execute
economic, social and development policies,
strategies and plans for the state.” The big
question
 is to draw the borderline between the two, but
certainly there is no doubt that this makes most of the
policy-making areas concurrent.
[email protected]
 Broadly speaking, the exclusive federal power includes:
defense, foreign affairs, immigration, major taxation
powers, currency and foreign exchange, foreign and
interstate trade, maritime shipping, inter-regional
communication, postage and matters physically
transcending state boundaries such as high-way transport
services and key aspects of economic activities, for which
uniform regulation is deemed important.
 Some of these powers are justified on the ground that it
would mean unnecessary multiplication of authority,
creation of inconsistent directives and creating chances of
friction.
 The general principle, on which allocation of responsibilities
has, usually, been based in the vague concept that
matters of national importance, should be reserved
to the federalgovernment, while matters of regional
importance should devolve to the states.
 But the principle does not tell us much about the
specifics of what powers should go to the federal
government and [email protected]
which one to the states.
Shared Legislative Powers
 Shared powers represent the meeting point of the two levels of
governments, otherwise considered exercising exclusive shares of
federal and state powers.
 These powers refer to that category of powers in which both the
federation and the states exercise at some point at least part of the
power.
 There are certain matters which cannot be allocated
exclusively either to the federal government or the states.
 It may be desirable that the states should legislate on some
matters but it is also necessary that the federal government should
also legislate to enable it in some cases to secure uniformity across
the nation.
 Another reason for having shared powers is the fact that the federal
government may need to guide and encourage state efforts and
more importantly some measure taken by the states may have spill-
over effects and for this reason the federal government may
need to intervene.
 Land law; in theory, it appears legislation is a federal matter while
the administration of land and natural resources belongs to the
states.
 However, constitutional practice differs from theory.
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 Concurrent Powers
 As one category of shared powers, concurrent powers
refer to powers attributed to both entities.
 However, one of the entities – often a times, the states –
are allowed to exercise this power until the federal
government steps in to legislate on such powers.
 Concurrent powers provide an element of flexibility in
the distribution of power enabling the federal
government to postpone the exercise of potential
authority in a particular field until it becomes a matter of
federal importance.
 the FDRE Constitution nowhere indicates such
concurrent powers, excepting tax-matters.
 However, it is still possible to argue that even in other
non-tax-matters there are concurrent powers.
 The Constitution has in one way or another made
mention of concurrent powers, albeit not explicitly
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 Residual Powers
 Residual powers represent those powers not listed or partly
listed by the Constitution and assigned to either unit of
government.
 The United States, Switzerland, Germany, and Ethiopian
Constitutions have preferred to leave residual powers with
the states while in India such powers belong to the center.
 The greater the list of enumerated powers, the less
significant the residual powers will be.
Fiscal Federalism
 Generally, the study of fiscal federalism focuses on the
allocation of expenditure responsibilities, revenue raising
powers and adjusting vertical and horizontal imbalances
through intergovernmental fiscal transfers.
 In a federal system, powers allocated to governments could
be of two general kinds: functions and responsibilities to be
discharged by each government, and means for affecting
these responsibilities. This includes the expenditure (in a
wider sense) and the revenue soliciting aspects of the
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 Structure of Allocation of Taxation Power in Ethiopia
The FDRE Constitution divides taxation power into three
categories, namely:
 a) Federal power of taxation,
 b) State power of taxation, and
 c) Concurrent power of taxation.

There is also undesignated power of taxation (Art.99 cons).

The power of taxation comprises of two specific powers: the
power to set a tax rate and the power to collect the tax paid
The Exclusive Power of Taxation of Federal and Regional
State Governments
 The most important question in the discussion of the exclusive
power of taxation is whether each level of government can
determine its own tax basis and tax rates.
 This raises the question
 whether a specific tax assigned to the state also signifies the
power to change tax rates and to set the tax base? Can the
states individually determine the tax rate, exempt taxpayers
or determine tax relief?
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 ,
 The FDRE Constitution provides exclusive
revenue sources under the title “federal
power of
 taxation” and “state power of taxation”. The
exclusive domain of each level of
government is not
 the tax base but the tax source.
 The FDRE Constitution provides exclusive
revenue sources under the title “federal
power of
 taxation” and “state power of taxation”. The
exclusive domain of each level of
government is not
 the tax base but the tax source
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 In most cases, it is argued that states should have the
power to determine the tax rate if the power of taxation
is exclusively given to the states.
 In Ethiopia, the FDRE Constitution declares that the
Federal Government shall levy taxes and collect duties
on sources reserved to it, and the states, likewise,
exercise the same power with respect to sources that fall
under their jurisdiction.
 Thus, the two levels of government exercise their
legislative and administrative powers within their
respective spheres of taxation.
 Thus, the FDRE Constitution does not explicitly limit the
power of the states to alter tax rates or to influence the
tax bases. In Article 100 it only provides general
“directives on taxation”; i.e.
 conditions they must consider prior to exercising their
powers taxation.
 In practice, however, tax legislation is uniform
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 The FDRE Constitution provides exclusive
revenue sources under the title “federal
power of taxation” and “state power of
taxation”.
 The exclusive domain of each level of
government is not the tax base but the tax
source.
 The FDRE Constitution provides exclusive
revenue sources under the title “federal
power of taxation” and “state power of
taxation”.
 The exclusive domain of each level of
government is not the tax base but the tax
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 Chapter VIII: Forms of State
 • Unitary state, federation and
confederation
 • Federalism: a brief overview
 • Common features of federations
 5
 • Allocation of competence in federations
 • The nature of Ethiopian federalism
 • The division of powers under the FDRE
Constitution
 • Powers of the Federal Government
 • Powers of the regional states
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 Theoretical Foundation of Federalism
 Carl Friedrich describes federalism as a union of group-
selves, united by one or more common
objectives but retaining their distinctive group being for
other purpose.
 Dicey‟s definition is that a federal state is a political
invention which is intended to reconcile
national unity and power with the maintenance of
the rights of the “member states”.
 Communities or states which form a federation are
striving towards unity rather than uniformity.
 To give expression to this striving towards unity within
diversity, those matters which are of common importance
to all the federal parts are entrusted to the central
government , while matters that are vital to the
preservation of a separate identity are left to the
authorities of the individual units.
 Accordingly, in a federation sovereignty is to all intents
and purpose partitioned.
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 The central authority is sovereign in regard to
the matters entrusted to it while the states, or
communities, or cultural groups, are supreme
in their own terrains.
 This division of function and powers can be
regarded as an express characteristic of
federal systems in that the authorities on the
two levels enjoy equal status, and are in no
way subjected to each other.
 The constitution is in reality a “contract” which
is entered into by the federating units and can
only be altered by a prescribed procedure.
 This “contract” makes provision for the
exercise of all governmental functions.

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 Prerequisites for Federal Associations
There must be a strong need and desire to
shoulder
  Common interests jointly
  Domestic interests separately

Types of Federations
 I. based on origin:
 Centripetal and Centrifugal Linking Units
 1. Centripetal linking is where

independent states move closer together

to create a federal state.
 Most federations have this type of origin, for
example the USA and Switzerland.(coming
together)
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 2. Centrifugal linking is where decentralized unitary
units are converted into a federation.
 Usually unilateral action is initiated by the central authority.
 II. based on foundation: Federal states can be created on
different foundations. They
 usually have a territorial basis, but can also have other bases
 1. Territorial Units; here, it is territorial area that serves
as unit of the federation. These
 areas can again be subdivided into two kinds, namely city-
states on the one hand and
 states on the other hand.
 2. Corporate Units;In this case the federal units are not
territorially bound so that what is
 at issue is a type of federalism in which various groups or
communities inhabit the same
 region and attend to their own domestic interests in accordance
with the subsidiary
 principle, but naturally co-operate with each other on matters
of common concern.
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 3. Person Oriented Units; the principle of person oriented
units is closely related to the
 principle of corporatism; both relate to various communities
which inhabit one and the
 same country. In the latter case (corporate units) the various
communities live in separate
 regions (or municipalities) of the same country while in the
former case, they are
 completely mixed. Consequently the only method of achieving a
degree of differentiation
 in a society such as this is to base the functions of the
authorities on the particular needs
 (or characteristics) of the people.
 4. Associated Units;this applies to members, which
according to international law are
 independent (of the federation) but according to constitutional
law are never the less
 members of a federal state. The best known example is west
Berlin
 Other Modalities
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 a. Nation Centered Federalism: This doctrine
stresses that the nation is superior to its
 component parts. the national government is the
government of all, its powers are
 delegated by all, it represents all and acts for all”.
 b. State Centered Federalism; The theory
asserts that the Constitution was a result of
 state action. Proponents of this theory said that the
states should vigilantly guard
 themselves against the national power.
 c. Dual Federalism This is also called the
separatist theory of federalism. This called
for

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 the carving out of separate fields of authority, for the
federal and the state governments.
 d. Cooperative Federalism: Under this scheme,
both collaborate to meet certain ends.The
 most important device of cooperative federalism is
that of providing grants-in-aid to the
 states The American federal system doest not
comprise of independent layers of
 government but is cooperative in nature
 e. Creative Federalism: This has all the features
of cooperative federalism, yet has some
 unique elements of its own. It lays emphasis on
cooperation, not only between the federal
 and state governments but between them and the
local units, private organizations and the
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 f. New Federalism /of Richard Nixon/:
This, in content, is much similar to
creative
 federalism, A new label was given to it by
Richard Nixon, he believed in responsible
 decentralization, whereby the states and
local authorities would receive a larger
share of
 powers. The thrust of „new federalism‟ is
to de-emphasize the national
government's role
 in the partnership of governments and to
strengthen that of the state and local
 governments.
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CHAPTER IX: CONSTITUTIONAL INTERPRETATION
 • The concept of judicial review
 • The centralized model
 • The decentralized model
 • Powers and organs of constitutional
interpretation
 • The Ethiopian approach

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 The power of second chambers
 In assessing the legislative power of upper houses in Federal
countries, two trends are prominent.
 1) The first category of upper houses is equally share the power
of law making with lower
 houses. (Co-equal legislators: USA and Switzerland) The
consent of both houses is a
 condition for a bill to obtain a legal force. The two houses in this
regard are co-equal as
 no law can be enacted unless both houses agree on the same
text.
 2) The second category of upper houses plays a
subsidiary role.( Subsidiary Legislators,eg.
 German and Indian) Each piece of legislation does not need the
approval of both the
 lower and upper houses, but the latter make sure that the
interests of the states are taken
 into account.
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 The HF: A non legislative second chamber
 The FDRE constitution fulfills the minimum requirement of having a
second chamber but with a totally different function. The upper
house or House of Federation has no legislative power.
 the only provisions we can trace legislative functions of the HF are
Article 99, 62(7) and 105.
 To determine undesignated power of taxation (concurrently with the
House of People‟s Representative)
 To determine the division of revenues derived from joint Federal
and State tax sources, and the subsidies that the Federal
government may provide to the States;
 To amend the constitution.
 In the strict sense, the Ethiopian parliament is unicameral as the HPR
is the only law making organs.
 Although the constitution has more or less addressed the issue of
self rule, a clear deviation from the principle of share rule is
visible in the Ethiopian federal arrangement.
 As the power to legislate is exclusively given to the House of
people's Representative (HPR) organized on a proportionality
principle (majority rule), there is no mechanism for smaller states to
check the House of [email protected]
people's Representative.
 Majoritarian House of Federation
 The Ethiopian House of Federation, seems to ignore this basic
principle of upper chambers
 applicable in worldwide federations.
 The constitution states that “Each Nation, Nationality and people
shall be represented in the House of the Federation by at least one
member. Each Nation or Nationality shall be represented by one
additional representative for each one million of its population.
 The first part of this provision seems in lime with the principle
discussed earlier. As each nation nationality is a building block of the
federation, they need to be represented in the HF.
 The representation of one million persons by one person is
undermining the chance of the minorities to influence the upper
house and they are submitted to the majority as in lower houses.
 The House of Federation composition is closer to the proportionality
principle which is a main characteristic of lower houses.
 The organizational principle of the HF is almost the same as HPR
except that there is a significant difference in the number of
constitutiencies,[email protected]
100.000 for the HPR and 1 million for the HF.
 Although the HF pretends to be the House for
nations and nationalities, it is in fact
representing
 the majority. A majority in the HPR is also a
majority in the HF and hence the very principle
of
 sovereignty of Nations, Nationalities and
peoples which it claims to enforce is in
jeopardy. This
 is rather the sovereignty of the population
that is reflected in the end, as in the HPR.
 The Ethiopian house of federation didn‟t
accommodate persons of exceptional talent.
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 We can illustrate the danger created by the HPR
monopolizing the federal law making power.
 From the 550 seats of the HPR, the most populous nations
(the Oromo and Amhara) occupy 304seats22
 Therefore, the Oromo‟s and Amhara‟s will form a quorum
and their combined vote will suffice to pass legislations to
the prejudice of other nations and nationalities.
 As stated earlier, it is such fear that many federal
constitution avoided by setting a non majoriatrian second
chamber where the rights of minorities will be exercised
and counterbalance the majority rule.
 Bicameralism requires a second chamber that is dissimilar
in terms of its composition compared to the first chamber.
 Is the overrepresentation to certain minorities or smaller
states is a basic characteristic of upper houses in
federations.
 It is a guarantee against the tyranny of the majority in the
lower houses.
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 Constitutional Interpreter
 Generality is one of the distinctive characteristics of
constitution.
 Constitutional provisions are intended to stay long period
and accommodate changing circumstances of the country.
 Constitutions by their nature are stated vaguely so that
they will serve for generations.
 Due to their generality, constitutions have loopholes or
may be over vague; constitutional interpretation is the
solution to this problem.
 Who should be empowered to adjusted constitutional
issues
There are four different scenarios:
  US, India, Australia….. the ordinary courts
  European countries….. a special court
  China …….. the legislature national people congress
  Switzerland ……… referendum.
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 The FDRE constitution is peculiar to this four trends
as it has empowered the House a Federation, a non
legislative but yet a political chamber, to resolve
constitutional dispute and to interpret the
constitution.
 Power Sharing; Parliamentary systems are all
power-sharing systems. But power sharing
cannot be pinned down as tidily as power division
can.
 The formula is elusive, for sharing denotes diffusion
and diffuseness.
 The position under the 1995 Constitution with
constitutional interpretation differs substantially from
the previous ones; i.e. the 1955 Revised Constitution
follows the American system of judicial review.
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 Chapter X: Fundamental Rights and
Freedoms under the FDRE
Constitution
• Individual and group rights
• Enforcement of Human rights
• Human rights institutions
• Human rights during a state of emergency
• Grounds for state of emergency
• Derogable and non-derogable rights

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