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The Rights of Minorities during State of Emergency: The Case of FDRE Constitution
Muluken Kassahun*
INTRODUCTION
Societies throughout the world enjoy ethnic, linguistic and religious diversity. Hence, states are
required to manage diversity and ensure non-discrimination, and strive to realize substantive
equality and participation. It is believed that minority rights can best be “achieved and articulated
through a combination of majority sensitivity and minority inclusion”.1 This is not only in normal
cases but also in abnormal circumstances like during state of emergency.
Basically, declaration of state of emergency is not for or against a certain group. It is declared to
avert the existing danger. However, in the operation of state of emergency, minorities are among
the most vulnerable groups. The UN HRC in its general comment on the state of emergency of
article 4 of ICCPR stipulates that the international protection of the rights of persons belonging to
minorities includes elements that must be respected in all circumstances.2
The FDRE constitution, on one hand, recognizes rights of minorities and on other hand, provides
non-derogable right provisions during declaration of state of emergency. In the constitution, there
is no fast and hard rule provides protection of minorities rights during state of emergency.
However, this doesn’t mean that minority rights are ignored in the existence of such exigencies.
There are various provisions of the constitution emphasizes that the protection of individual and
group rights of minorities during state of emergency in different mechanisms. So, this paper to
analyze those protections incorporated in the FDRE constitutions.
Based on above scenario, the paper organized into three sections. Section one deals the general
concepts relating to minorities, derogation of human rights, and state of emergency. Then, section
two focuses on the state of emergency and non-derogable rights under FDRE constitution and
protection of rights of minorities during a state of emergency in light of FDRE constitution. Lastly,
in Section three, the paper wrap up by stating a conclusion.
*LLB, LLM Candidate. Any comment or question relating to this article may be sent to the following email address:
[email protected] 1 Beza Dessalegn, “The Right of Minorities to Political Participation under The Ethio pian Electoral system”, Mizan
Law Review, Vol. 7, No.1, 2013, P.79 2 United Nation Human Rights Committee, States of Emergency (article 4), General Comment 29, U.N. Doc.
CCPR/C/21/Rev.1/Add.11 (2001) Para. 13(D).
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SECTION ONE
THEORETICAL AND CONCEPTUAL FRAMEWORKS
1.1.DEFINITION OF MINORITY
Like many other social science terms, there is no universally agreed definition of minority. The
first international binding instrument regarding minorities, the 1966 ICCPR covenant, failed to
define as to what constitutes a minority. Even, the term minority was not defined in the 1992 UN
Declaration on the Rights of Persons Belonging to National or Ethnic, Linguistic or Religious
Minorities, which is the first international instrument to deal with minorities concerns in a separate
instrument. However, different scholars define the term from different perspectives. The most
known operational definition given by the Francesco Caportoti, who is special rapporteurs of the
UN sub-commission, which reads as:
“A group numerically inferior to the rest of the population of a State, in a non-dominant
position, whose members - being nationals of the State- possess ethnic, religious or
linguistic characteristics differing from those of the rest of the population and show, if only
implicitly, a sense of solidarity, directed towards preserving their culture, religion or
language.”3
Accordingly, there are five criteria to be met by a group to be considered as a minority. First, they
should be a group of persons whose distinctions are based on ethnic, linguistic or religious
backgrounds in a state in which they constitute a minority. Secondly, the group should be in a
position of non-dominance. Thirdly, their number should be less than the rest of the population of
a state. Fourthly, they should be nationals of a state, as opposed to non-nationals, immigrants, and
refugees. Lastly, there should be solidarity among the group in preserving their distinction.
However, this is not universally accepted definition. Also, it subjected to various criticisms, such
as;- first, the definition needs itself another definition to define the jargons such as what amounts
to numerical inferiority, non-dominance and so on. Secondly, the definition of who is national is
differed from one to another country, which the same person got status of nationality in one
country and in other s/he may treated as non-national for the same status, and thirdly, the scope of
3 Tokuma Daba ,The Legal and Practical Protection of the Rights of Minorities in Self Administering nations of
Ethiopia : The case of Oromia, LLM thesis, AAU(unpublished), 2010, P. 17
3
definition of minority is limited and excludes migrant workers, foreigners, settlers and they can’t
claim for minority rights. However, according to HRC General Comment No. 23 individuals
minorities recognized under Article 27 ICCPR need not be citizens to be protected.
In general, minority rights presuppose the existence of minority groups. In such case, in order to
protect minority rights, it needs a kind of awareness of the existence of minority group that distinct
from the majority in terms of way of life, history, language, religion and culture of those groups.
Therefore, even if awareness on the side of the majority is not a decisive element to protect the
right of minorities, awareness by the majority is an essential condition to be recognized as a
minority. Sometimes such recognition requires constitutional changes such as Sami people of
Norway, as it requires affirmative action and other assistance by the government.4
Also, the nature of state and definition of citizenship affects the existence of minority groups. For
instance, in Ethiopia, in past regimes constitutions have no ethnic connotation, rather one nation,
one flag, and one country. This suppresses protection of the right of minorities due to no
recognition for them. However, the 1995 FDRE constitution starting from preamble gives privilege
for the nation, nationality and peoples. In this regard, bearing in mind that, art. 6 of FDRE
constitution doesn’t define nationality in terms of ethnicity. But, the whole spirit and content of the
constitution deal about nation, nationality and peoples that give recognition for minority groups.
1.2.TYPES OF MINORITIES
Article 27 of the ICCPR gives protection to individuals (but not say group) belonging to ethnic,
linguistic and religious minorities. This imposes both negative and positive obligation on member
states as pursuant to art. 2 of the covenant. Let’s discuss types of minorities separately below.
1.2.1. Ethnic Minorities
4 See Article 110a of the Norwegian constitution and The Sami Act (act of 12 June 1987 No. 56 concerning the Sami
Parliament (the Sámediggi) and other legal matters pertaining to the Samis). The constitutional amendment states : "It
is the responsibility of the authorities of the State to create conditions enabling the Sa mi people to preserve and
develop its language, culture and way of life." This provides a legal and political protection of the Sami language,
culture and society. The "amendment implies a legal, political and moral obligation for Norwegian authorities to create
an environment conducive to the Samis themselves influencing on the development of the Sami community"
4
Ethnicity is wider than race. When an ethnic group is assumed to a biological basis, it is called a
race.5 In addition, race can be included within ethnicity. However, in other cases in which the
groups’ difference is based on cultural differences, it is ethnicity proper. Ethnic groups are entitled
to claim minority protection only when they have cultural, historical and linguistic characteristics
that distinguish them from the rest of the population. The group has to be self-conscious, to retain
its distinctness though it is difficult to proof as it is a mental state. However, under article 27 of the
ICCPR, it is the ethnic minority rather than race that is protected.
1.2.2. National Minorities
National minorities are not included in Art. 27 of ICCPR. The basic difference between ethnic
minority and national minority is that, the group is considered national minority when it has an
image of its collective past image and when its members are aware of and responsive to that
image.6
1.2.3. Linguistic Minorities
Language right encompasses right to speak, write, read and so on. Thus, its purpose goes beyond
effective communication. Having distinct language is a key factor to identify linguistic minorities
from the rest of the population. In multi-lingual states, certain groups may demand special
treatment to retain their language using in both public and private affairs. They are identified on
the basis of the language they speak, write or use in private and in public affairs which are
distinguishable from the national or regional language and their desire to preserve and promote
their distinct language.7
1.2.4. Religious Minorities
Apart from the guarantee against discrimination based on religion under general individual human
rights, article 27 of the ICCPR and the Minority Declaration recognizes religious minorities.
Usually, groups of people belonging to a certain religion different from the state religion or the
5Belay Shibeshi, Minority Right Protection In Amhara Regional State: The case of Kimant people in north Gonder,
LLM thesis, AAU(unpublished) ,2010, P. 22 6 Aberra Dagafa, “The Scope of Rights of National Minorities under the Constitution of Federal Democratic Republic
of Ethiopia”, Series on Ethiopian Constitutional Law, vol. 1, AAU Printing Press, 2000, P.37 7 Id.,P.35
5
religion of the majority but does not stand in opposition to it in a country where there is no
religious tolerance and want to preserve its religious identities constitute religious minorities.8
1.3.Contents of Minorities Rights
1.3.1. Rights to Preserve Separate Identity
States must recognize and protect the existence of minorities. The 1992 Declaration on the Rights
of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities in art. 1 says;-
“States shall protect the existence and the national or ethnic, cultural, religious and
linguistic identity of minorities within their respective territories and shall encourage
conditions for the promotion of that identity”
The declaration imposes a duty on member states to protect and promote the condition of
minorities. So, the right to existence is the founding brick of rights of minorities as the existence of
other rights is necessary only when the group exists. The first thing that comes into the picture of
discussion of minorities and their rights is official recognition. Distinct identities of minorities
such as linguistic, religious and cultural identities can be a point of concern when the right to
physical existence and preserve separate identity are respected.9
1.3.2. Language Rights
Language is an intrinsic element of identity of the human person. That is why Fishman states that
“ethnic identity becomes impoverished without the linguistic dimension.” 10 It is also a means to
access to resources, employment and even public authority in addition to being a means of
preserving one’s identity. Where one linguistic group becomes dominant in the power structure,
the allocation of individuals to public function offers the dominant group ample opportunities to
pursue specific national policies.
Thus, a group has a right to speak and write in its own language, get public services in its own
language. Primarily, it should be recognized as equal to other languages of the state. Schools shall
8Ibid 9 Tokuma, supranote 3, P.38 10 Id, P.39
6
be run by the local languages at least at the primary level. Cultural and artistic activities of a
society should be manifested through the local vernacular.
1.3.3. Cultural Rights
Art. 27 of the ICCPR states that cultural minorities are entitled to recognition and protection of
their right to enjoy their own culture in community with other members of the group. Cultural
rights includes; customs, morals, traditions, rituals, types of housing, wearing, eating habits,
manufacture of the object of art, the cultivation of music, the establishment of cultural
organizations, the publication of literature in the minority language.11
A minority group can make its cultural, traditional and customary values everlasting and cross-
generational only through practice. Minorities interest will be promoted and protected by
respecting the value of their cultures. The state as respects the dominant culture, they should also
respect the minority’s culture. There should be equal recognition of all cultures, which does not
violate the rights of others, principally the rights of individuals. Also, state should refrain from
depriving members of minorities from enjoying their culture that can destroy their distinctiveness.
Instead of that, their museums, libraries, place of workshop of their culture should be respected.
1.3.4. Participatory Rights
Art. 25 of ICCPR provides for the right and opportunity of every citizen “to take part in the
conduct of public affairs, directly or through freely chosen representatives, to vote and to be
elected at genuine periodic elections which shall be by universal and equal suffrage and shall be
held by secret ballot, guarantying the free expression of the will of the electors” and “to have
access on general terms of equality, to public service in his country, without any of the distinctions
mentioned in Art.2 and without unreasonable restrictions.”
Basically, participation relates to the exercise of political power, includes exercise of legislative,
executive and administrative powers and all aspects of public administration, formulation and
implementation of policy at international, national, regional and local levels.12
11 Id.P.42 12 Belay, supra note 5, p. 29
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Admitting members of minority groups in public affairs and reserving political space enable them
to have their legitimate share in the exercise of powers. Beyond influencing the decision of the
majority, it enables minorities to feel belongingness and empowers them to share power in the
administration of the state. This has important due to it protects their interests, and strengthens
their relations with the state. Thus, the government should not only refrain from imposing an
unfounded restriction on minorities’ participatory rights but also, it should facilitate.
1.3.5. Right to Equality
Minority groups claim “collective rights and collective equality” in addition to “adequate
protection to the right to individual equality”13 among all citizens in the state. Because of, the right
to equality and non-discrimination are relevant and essential elements of individual right and
minority groups. While the right to equality and non-discrimination applies to all human races of
minority groups to deserve special and “extra-protection’ because of their defenseless position in
liberal democracy as compared to the majority. Without special treatment to the minority groups
the right to existence, retain separate identity is going to be under the arrest of the majority and
ultimately denied.
1.3.6. Rights to Self-Determination
Minority groups have a right to claim internal and external self determination.14 The external right
to self determination is concerned about the international status of a people. While, the right to
internal self-determination includes freedom to choose one’s own government, the right of a group
to be free from another rule and to choose the sovereign and the right to democratic government.
In addition it composes the right to establish educational centers whose instruction media is its
language, cultural autonomy, manifesting of freedom of religion…etc.15 It is meant to be the right
of members of a group to freely determine or choose the system and the authorities that will
implement the genuine will of the people.
Instead of external self-determination, minority groups are entitled to internal self-determination.
Minority groups seek adequate guarantee to participate in decision-making at national, regional
13 Tokuma, supra note 3, p. 45 14 Florentina Harbo, “Secession Right – an Anti-Federal Principle? Comparative Study of Federal States and the EU”,
Journal of Politics and Law, 2008, P.132-139 15 Ibid.
8
and sub-regional levels. The full extent of the right to internal self-determination may go as far as
having a federal arrangement. However, such arrangement by itself can’t only guarantee protection
of minorities unless the system designed to accommodate diversity both in law and practice.
1.4. The Concept Of State Of Emergency and Derogation Of Human right
An emergency is a situation “outside an ordinary course of events.” In other word, an emergency
is a situation, which affects or may affect the public order or endangers the security of the state or
may cause the country or any part of the country to fall into a state of difficulty.16 Derogation
refers to a temporary suspension of human rights during a state of emergency. Derogating
measures are exceptional and temporary nature.17 The rationale for derogation provisions is to
strike a balance between the sovereign right of a government to maintain peace and order during
public emergencies, and the protection of the rights of the individual from abuse by the state.
A state of emergency is classified into de jure and de facto18. De jure state of emergency exists
when states comply with legal requirements for its declaration. If states exercise their emergency
power without complying with preconditions prescribed in their constitutions and international
human rights instrument, they are in a de facto state of emergency. A de jure state of emergency
becomes de facto when emergency “measures are extended beyond the formal termination of a
declared state of emergency.”19
Article 4 of the ICCPR provides a clear set of standards that state parties have to comply with
when they take measures derogating from their obligation under the covenant. These criteria’s are:
(a) emergency measures can only be taken when the life of the nation is threatened; (b) a state of
emergency must be officially proclaimed; (c) such measures are strictly required by the exigencies
of the situation or proportional to emergency; (d) such measures should not be inconsistent with
other obligations under international treaties; (e) no derogation are made from the core rights; and
state parties taking derogation measures should inform the other states parties through secretary
general; and (f) Such measures do not involve discrimination solely on the ground of race, color,
sex, language, religion, or social origin.
16Abdi Jibril Ali, “Distinguishing Limitation On Constitutional Rights From Suspension: A comment on CUD case”,
Haramaya law review, Vol.1, No.2, 2012,P.2 17 Ibid. 18 Ibid. 19 Id.P.13
9
Derogation from fundamental rights and freedoms enables the government to resort to measures in
order to protect the essential fabric of that society. However, during a state of emergency, certain
rights are not derogated. The principle of non-derogability prohibits states from suspending certain
core rights even under the gravest states of an urgent situation. Accordingly, art. 4(2) of the ICCPR
lists the following rights as non-derogable rights:- Art. 6 (right to life), art. 7(freedom from torture
or to cruel, inhumane or degrading treatment or punishment), article 8(prohibition against slavery
or to be held in servitude), and article 11(imprisonment for the inability to discharge contractual
obligation), article 15(prohibition against ex-post facto criminal law), article 16(the right to be
recognized as a person before the law) and article 18(freedom of thought, conscience and religion).
1.5.Linkage of Minorities Right and the State Of Emergency
Basically, declaration of a state of emergency is not against or for a certain group. It is declared to
avert the existing danger. However, in the operation of state of emergency, there are vulnerable
groups, which may be largely affected than others and needs special protection and assistance in
addition to those affirmative action’s done during normal circumstances.20
The UN HRC, General Comment 29 on States of Emergency of article 4 of ICCPR states;-
“According to art. 4, paragraph 1, one of the conditions for the justifiability of any
derogation from the Covenant is that the measures taken do not involve discrimination
solely on the ground of race, colour, sex, language, religion or social origin. Even though
article 26 or the other Covenant provisions related to non-discrimination (articles 2, 3, 14,
para. 1, 23, para. 4, 24, para. 1, and 25) have not been listed among the non-derogable
provisions in article 4, paragraph 2, there are elements or dimensions of the right to non-
discrimination that cannot be derogated from in any circumstances. In particular, this
provision of article 4, paragraph 1, must be complied with if any distinctions between
persons are made when resorting to measures that derogate from the Covenant”21
This implies the principle of non-discrimination applies irrespective one’s own identity and status,
guarantees the individual right of each person which is a basis for a group right of minorities. 20 Demelash Shiferaw, & Yonas Tesfa, Human Rights Law Teaching Material, Prepared under the Sponsorship of the
Justice and Legal System Research Institute(unpublished), 2009, P.63
21UN HRC General comment, supa note 2, Para. 8
10
Furthermore, in addition non derogable rights listed in article 4(2) of the covenant, the UN HRC
general comment recognizes further non derogable rights. Right of minority is one of those non
derogable rights as stipulated in para. 13(D) of the general comment as follow:-
“D. The Committee(HRC) is of the opinion that the international protection of the rights of
persons belonging to minorities includes elements that must be respected in all
circumstances. This is reflected in the prohibition against genocide in international law, in
the inclusion of a non-discrimination clause in article 4 itself (paragraph 1), as well as in
the non-derogable nature of article 18(freedom of thought, conscience, and religion)”
This emphasizes that, the protection of the right of minorities are among non derogable rights
during state of emergency. But the general comment cannot clearly stipulate which right of
minorities are non derogable. However, in the spirit of above paragraph 13(d), non-derogable right
includes the principle of non-discrimination and freedom of thought, conscience and religion as
well as protection from genocide acts.
Besides, the general comment prohibits declaration of state of emergency made pursuant to article
4(1) of the covenant, may be invoked as justification for a State party to engage itself, contrary to
article 20, in propaganda for war, or in advocacy of national, racial or religious hatred that would
constitute incitement to discrimination, hostility or violence.22 This dictates declaration of state of
emergency should be for a legitimate purpose and not declared to engage in acts constitute
discrimination and hostility among a group of peoples including minorities.
22 Id. Para. 13(E)
11
SECTION TWO
STATE OF EMERGENCY AND MINORITIES RIGHTS PROTECTION UNDER FDRE
CONSTITUTION
2.1. Minority Rights Protection in FDRE Constitution
The FDRE constitution does not provide definition of minorities. However, the Constitution
comprehensively recognizes both individual and group rights of minorities by internalizing such
rights through explicit inclusion in domestic laws, ratifying treaties consist minority rights (art.
9/4) and interpret constitutional rights in conformity principles of UDHR and International Human
right instruments adopted by the country(art.13/2)). Let see some of rights recognized as follow23;-
2.1.1. Right to Existence/Recognition
The preamble of FDRE constitution expression of “We, the Nation, Nationalities and Peoples of
Ethiopia” gives us hints to the recognition of Ethiopia as the land of Nation, nationality and
peoples(hereinafter, NNP) and with that implicitly as the land of ethnic minorities.24 Moreover, the
constitution empowers all NNP whether large or small in number it has the source sovereign power
holder in the country as per art. 8 of the constitution. Also, paragraph two of the preamble,
convinces Ethiopian people’s to live together on basis o equality and without any religious and
cultural discrimination, dictates that the country is made up of multi-diversity from different
dimensions and gives equal recognition to all of them.
In this regard, the FDRE Constitution under article 28 placed genocide and summary execution as
defined by international agreements ratified by Ethiopia and by other laws of Ethiopia as crimes
against humanity. By the virtue of this provision, the basic frameworks for physical existence of
minorities are indeed set down in the Ethiopian Federation.
2.1.2. Language rights
The FDRE Constitution has guarantee equal state recognition to all Ethiopian language (article 5/
1) and in art. 25. Also, it empowers members of federation to determine their respective working
23 This title is not aimed to deeply analyze each and every aspect of rights of minorities in the constitution, rather to
explore the recognition of rights of minorities. 24 Haileyesus Taye, Issues of Minority Rights in the Ethiopian Federation , ECMI Working paper, 2012, P. 5
12
language by law (article 5/3). Moreover, article 39/2 recognizes every NNP in Ethiopia has the
right to speak, to write and develop its own language. Additionally, language is one of the criteria
on the delimitation of Ethiopian federations as per art. 46(2) of the Constitution.
2.1.3. Participatory Right
The FDRE constitution guarantees participatory rights of minorities. To list some of them;-
I. The sovereignty of each NNP shall be expressed through their representatives elected in
accordance with the Constitution and through their direct democratic participation.(art. 8/3)
II. As pursuant to art. 37, every Ethiopian national, without any discrimination has equally right
(a) To take part in the conduct of public affairs, directly and through freely chosen
representatives; (b) On the attainment of 18 years of age, to vote in accordance with law; (c)
To vote and to be elected at periodic elections to any office at any level of government.
III. Every NNP in Ethiopia has the right to equitable representation in state and Federal
governments.(art. 39/3). But the constitution cannot distinguish on which organ of the
government (legislative, executive and judiciary) that NNP are equitably represented.
IV. Minority Nationalities and Peoples shall have at least 20 seats in the HPR(art. 54/3)
V. The representation of all NNP in the HOF(the Upper House), which is the essential place of
minority representation is regulated according to article 61 of the FDRE Constitution. By
taking into consideration that the development and decision on federal-state budget transfer
formula and the constitutional interpretation as the basic responsibilities of the HOF.25
Above listed provisions are directly or indirectly designed, not only to accommodate diversity, but
also to ensure the empowerment or participation of minority nationalities.
2.1.4. Right to Equality
The recognition of the right to equality and non-discrimination in art. 25 in FDRE constitution are
the basic normative foundations of underpinning minority rights. Moreover, the constitution
ensures substantive equality by imposing a duty on the government to provide special assistance to
nations, nationalities, and peoples which are least advantaged in economic and social development
25 Id. P.8
13
as pursuant to art. 89(4) of the constitution. This special assistance to economically least
advantaged groups is indeed another measure in promoting minority rights in the country.26
2.1.5. Right to Self-Determination
FDRE constitution recognizes both the external and internal dimension of this right. Concerning
the earlier, the FDRE constitution with its emphasis on ethnic self-determination expressly
provides for the constitutional right of secession (article 39(4)) by a procedure that includes steps a
two-thirds majority vote of the council of the respective state, a referendum organized by the
federal government, and a majority vote in the referendum.27 On the latter, the internal aspect of
right to self-determination consists the right to speak, to write and develop its own language, right
to a full measure of self-government which includes the right to establish institutions of
government in the territory that it inhabits and to equitable representation, territorial autonomy,
right to establish one’s own state(art. 47) and determining one’s own working language and so on.
2.2. Declaration of the State of Emergency under the FDRE Constitution
In a federal country, extraordinary emergency situation would call for a greater concentration of
powers in the federal or national authorities and a greater encroachment on the powers normally
assigned to the state governments.28 In Ethiopia, power to decree a state of emergency at federal
level entrusted to Council of Ministers, and at state level given to state executive as pursuant to art.
93(1) of the constitution. The grounds to declare such emergency at the federal level are external
invasion, breakdown of law and order which endangers the constitutional order and which cannot
be controlled by the regular law enforcement agencies and personnel, a natural disaster, or an
epidemic occur. State-wide state of emergency declared only when the later two events occurred.29
Concerning its procedure, the state has a constitutional autonomy to determine the process to be
followed to declare state wide emergency due to it's not addressed in the FDRE constitution.
However, when the decree is at the federal level the constitution sets a certain standards.
26 Id. P.7 27 Ronald L. Watts, Comparing Federal System(3rd ed.)s, Montreal & Kingston, McGill – Queen’s University Press,
2008, P. 168 28 Sileshi Zeyohannes, Constitutional law II, Teaching Material, Prepared under the Sponsorship of the Justice and
Legal System Research Institute(unpublished), 2009, P.252 29 The Const itution of Federal Democratic Republic Of Ethiopia, Federal Negarit gazette, First Year, proclamation No.
1/1995, Addis Abeba, 1995, art. 93 1(A and B)
14
Accordingly, the power to declare state of emergency is given to the Council of Ministers
(hereinafter, COM). Also, art. 55(8) reads: “In conformity with Art. 93 of the constitution the HPR
shall declare a state of emergency and above all it shall consider and resolve on the decree of a
state of emergency declared by the executive.”30 This dictates that, the constitution adopts both the
executive and parliamentary model of declaring state of emergency.31
Its executive model due to the power to decree the state of emergency is entrusted to the COM as
per art. 93(1A) of the constitution. On other hand, it’s a Parliamentary model, as pursuant to article
93(2) and (3) of the constitution, the decree of COM should be approved by the HPR to have a
valid force of law, since the non-approval may result in cancellation of the decree.32 In addition,
the constitution adoption of the parliamentary model is clearer as it requires approval and renewal
of by the HPR, so that the emergency decrease will have a valid force of law.
The House has a power either to approve or reject the decree submitted to it. It is if approved by
the parliament (HPR), by two third (2/3) majority, state of emergency declared by the Council of
Ministers can remain in effect. Also, it is the power of the House either to deny or allow renewal of
the state of emergency proclamation at every four months after the lapse of six months period.33
2.3. Non-Derogable Rights Under FDRE constitution
In the exercise of state of emergency, there are non derogable provisions. Accordingly,
Art.1(Nomenclature of the state, not right), art.18(prohibition of inhuman treatment), art.25 (right
to Equality) and sub- Articles 1 and 2 of Article 39(right to self-determination including secession)
are not suspended during state of emergency as pursuant to art. 93(4C) of FDRE Constitution.
When we compare such lists with article 4(2) of the ICCPR non-derogable rights most rights of
ICCPR provisions are not included in the FDRE constitution.
The list of non derogable rights recognized in the ICCPR and omitted in the FDRE constitution
are;- Article 6(right to life), article 11(prohibition of imprisonment for the inability to discharge
30 Id. art. 77(10) 31 Guyo Huka, Derogation Of Human Rights In a state of Emergency under Ethiopian Constitution: A comparison of
The Federal and State constitutions in Light of major Human right instruments, LLM thesis, ECSU(unpublished),
2013, P. 55-58 32 See article 93(2)(a) and (b) of the FDRE constitution. 33 See article 93(3) of the FDRE constitution.
15
contractual obligation), article 15(prohibition against ex-post facto criminal law), article 16(the
right to be recognized as a person before the law) and article 18(freedom of thought, conscience
and religion). These rights are argued as derogable in the FDRE constitution based on the contrario
reading of art. 93(4C). This implies that, the FDRE constitution has lesser protection than that of
ICCPR standard. Moreover, the right to life is the most vital and the basis for other human right is
derogable under the constitution. This endangers/deteriorates the protection of human rights in
general and protection of minority right in particular.34
However, on one hand, states of Ethiopian federation have better protection by incorporating a
more non derogable rights provision in their own constitution including the right to life as non
derogable right.35 On other hand, Somali state constitution does not include the prohibition of
inhuman treatment and the right to equality, and also, Afar constitution not includes the right to
self-determination including secession as non derogable right.36 Such exclusion from list of non
derogable right emphasizes both region constitution has a lesser protection than FDRE protection
standard towards those rights. Therefore, i argue that, excluding such rights from non derogable
rights without having constitutional autonomy on the issue is against art. 9/1 of FDRE constitution
with regard to those provisions.
2.4. Minorities Rights Protection during State of Emergency under FDRE Constitution
States of emergency have two components: firstly, a legal framework consisting of the
constitutional and legislative bases for the state of emergency, and secondly, an operational
framework involving the organisational structure and strategic plans for dealing with the state of
emergency.37 In FDRE constitution, basically, there is no fast and hard rule provides protection of
34 In connection to this issue, some authors argue that, non-derogable provision of art. 93(4C) should be read with art.
Art. 13(2) of the FDRE constitution, in case of inconsistency or gap exist, which mandates in terpretation human right
provision in the FDRE constitution in conform to international Human right instruments adopted by Ethiopia including
ICCPR. Hence, those non-derogable rights in the ICCPR should be incorporated into FDRE constitution through
Interpretation. While other scholars argue that, firstly, the application of art. 13(2) limited to provisions of chapter
three (art. 13-44) of the constitution and not extended to art. 93(4C) or other chapters. Secondly, what the constitution
clearly provides is not subject to interpretation. 35 Guyo, Supra note 31, P. 70-84 36 Ibid 37 State of Emergency, Security Sector governance and Reform, October 2005( www.dcaf.ch , last accessed on
12/04/2015)
16
minority rights during a state of Emergency. However, there are various indications, which
impliedly address individual and group rights of minorities in different mechanisms. Those are;-
2.4.1. Legal Safeguards
The FDRE constitution guarantees both individual and group rights of minorities, not only in
normal circumstances but also during state of emergency by providing non-derogable rights.
2.4.1.1.Individual Rights Of Minorities
The two non-derogable right provisions provided in art. 93(4C) directly linked to individual and
minority rights. Those are;- art. 18 (prohibition against inhuman treatment) and art. 25(right to
Equality). The earlier pledges minority rights by saying that art. 18(1) “Everyone has the right to
protection against cruel, inhumane or degrading treatment or punishment”, not include torture.
And in art. 18(2) and 18(3) states no one shall be held in servitude or slavery nor perform forced or
compulsory labour except in conditions provided in art. 18(4). So, in above provisions the term
‘everyone’ in art. 18(1) and the term ‘No one’ in art. 18(2) and 18(3) applies to all persons
including protection of minorities from such acts in all circumstances even in state of emergencies.
The later provision, art. 25, the right to equality before the law and the principle of non-
discrimination should be protected irrespective of identity or nationality or social origin or other
status. This is an essential guarantee to protect the right of minorities during state of emergency.
Moreover, the UN HRC general comment on art. 4(2) of ICCPR towards state emergency states;-
“The Committee is of the opinion that the international protection of the rights of persons
belonging to minorities includes elements that must be respected in all circumstances. This
is reflected in the prohibition against genocide in international law, in the inclusion of a
non-discrimination clause in article 4 itself (paragraph 1), as well as in the non-derogable
nature of article 18(Freedom of Thought, Conscience, and Religion)”38
This emphasizes that minorities right should be protected at a time of emergency particularly their
right to non-discrimination clause, the right to freedom of religion, conscience and thought and
protection from Genocide.
38 UN general comment, Supra note 2, Para. 13(d)
17
2.4.1.2.Group Rights Of Minorities
An individual right is the basis for the protection of minorities rights. But this is not enough to
protect minority rights. Thus, FDRE constitution protects not only individual right, but also group
rights of minorities during state of emergency. This makes FDRE constitution distinct and better
protection than ICCPR. Because almost all non dereogable provision of ICCPR are directly linked
to individual rights.
However, the FDRE constitution art. 93(4C) recognizes the non-derogability of the right to self-
determination of nation, nationality and peoples in its both internal and external aspect of art.39(1)
and 39(2). In other words, the constitution guarantees the right to secession to minority
nationalities in its external dimension, and also guarantees the protection of the right to speak, to
write and to develop its own language; to express, to develop and to promote its culture; and to
preserve its history of each NNP including minorities in internal dimension.
2.4.2. Institutional mechanisms
FDRE constitution empowers different organs of government to address the operation of state of
emergency based on the principle of separation of power as it is proved to be an effective
mechanism for controlling abuse of powers. The purpose of this principle is to prevent any single
branch of the government from becoming too powerful, to curve despotism and arbitrariness and to
promote liberty, democracy, and good governance by creating a system of check and balance.39
This encourages the protection of fundamental human right and freedoms including minority
rights. Thus, we deal the role of different main government organs during state of emergency.
2.4.2.1.House Of People Representative Role
HPR (federal legislature) is constitutionally empowered related to state of emergency on issues of:-
Declare state of Emergency(art.50(8)) or approve state of emergency of decreed by Council Of
Ministers (art. 93(3))
Decide whether on renewal or discontinuance of state of emergency every 4 months(art.93(3)
39 Aberham Yohannes & Desta G/Michael, Admnistrative law Teaching Material, Prepared under the Sponsorship of
the Justice and Legal System Research Institute(unpublished), 2009, P.161
18
Establish State of Emergency Inquiry board which performs various duties and responsibilities
during state of Emergency (art. 93(5) and 93(6)).
2.4.2.2.Council Of Ministers Role
Council of minister is one of highest executive body of federal government in the FDRE
constitution and it has the following function and power during state of emergency;-
Decree State of Emergency(art 93/1)
Take all necessary power to protect country’s peace and sovereignty and to maintain public
security, law, and orders (art. 93/4A). At this juncture, the constitution does not set the
standards of what amounts to “Necessary power”. This deteriorates protection of human
rights due to it gives wide discretion to COM unless limited by further laws.
Suspend political and democratic rights contained in the constitution to the extent
necessary to avert the conditions (93/4B). But FDRE constitution doesn’t identify which
rights are categorized under political and democratic rights.
Refrain from suspending or limiting rights provided in art. 1, 18, 25 and 39(1) and (2).
2.4.2.3. State of Emergency Inquiry Board Function
The HPR, while declaring a state of emergency, shall simultaneously establish a State of
Emergency Inquiry Board, comprise of seven persons to be chosen and assigned by the House
from among its members and from legal experts as pursuant to art. 93(5) of FDRE constitution.
The State of Emergency Inquiry Board shall have the following powers and responsibilities:40
a) To make public within one month the names of all individuals arrested on account of the
state of emergency together with the reasons for their arrest.
b) To inspect and follow up that no measure taken during the state of emergency is inhumane.
c) To recommend to the Prime Minister or to the Council of Ministers corrective measures if it
finds any case of inhumane treatment.
d) To ensure the prosecution of perpetrators of inhumane acts.
e) To submit its views to the HPR on a request to extend the duration of the state of emergency.
2.4.2.4.Judiciary Role
40 FDRE constitution, supra note 29, art.93(6)
19
The role of judicial organ during state of Emergency is not provided in the FDRE constitution.
However, in other countries, like South Africa and Kenya, judiciary is empowered to review
measures of state during state of emergency. But, in our country reviewing such measure is given
to state emergency inquiry board. If so, what is the role of the judiciary is questionable. On one
hand, not only most rights are derogable, but also all government organs are derogable. But this
doesn’t mean that they are totally suspended from doing from their function. Because the
emergency existed cannot be able to avert without existence and involvement of such institutions
(like HPR and council of Ministers) as they are empowered to do various functions during such
exigencies.
Besides, the judiciary even if not clearly empowered in the constitution, art. 93(6D) of the
constitution implies courts have a role in entertaining the prosecution of perpetrators of the
inhumane act. This indicates that those non derogable right protections are also ensured by the
judiciary. Moreover, UN HRC General comment on State of Emergency of art. 4 of ICCPR states
on para. 14;-
“The Committee is of the opinion that the principles of legality and the rule of law require
that fundamental requirements of fair trial must be respected during a state of emergency.
Only a court of law may try and convict a person for a criminal offence. The presumption
of innocence must be respected. In order to protect non-derogable rights, the right to take
proceedings before a court to enable the court to decide without delay on the lawfulness of
detention, must not be diminished by a State party’s decision to derogate from the
Covenant.”
This general comment binds Ethiopia as pursuant to art. 9(4) and 13(2) of FDRE constitution.41
So, above discussed role of different institutions during state of emergency are aimed at preventing
abuse of power and ensuring effective function of government to avert the danger and protect the
fundamental human right of citizens. And this guarantee, not only to majorities, but also to
minority groups as they are more vulnerable than others in such exigencies.
41 As pursuant to art. 9(4), All international agreements ratified by Ethiopia are an integral part of the law of the land
including ICCPR. Also, art. 13(2) says “The fundamental rights and freedoms specified in this Chapter shall be
interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International
Covenants on Human Rights and international instruments adopted by Ethiopia”. Thus, Ethiopia as a member of
ICCPR, these general comment servers as a guidance of interpretation as pursuant to art. 13(2) of the constitution.
20
SECTION 3
CONCLUSIONS
There is no homogeneous population state across the world. Thus, it needs guarantee for the
protection of minorities rights. Even if there is no universally accepted definition of the term
‘minority’, the ICCPR and other international human right instruments recognizes protection to
persons belonging to ethnic, linguistic, religious and other minorities. Minorities have the right to
recognition (existence), promote their language and culture, the right to participation, the right to
equality, right to self-determination and so on. Such rights should be protected to them, not only in
ordinary circumstances, but also in the time of state of emergency due to they are distinguished as
among vulnerable groups under the international human right law.
FDRE constitution from its beginning, in the preamble, dictates Ethiopia is the land of minorities
and also guarantees all nation, nationality and peoples of the country as a source of sovereign
power. Moreover, above listed rights of minorities are recognized in various parts of the
constitution in scattered manner. However, on one hand, the FDRE constitution limits the list of
non derogable rights lesser than what is recognized in ICCPR, as non derogable, even if most of
art. 4(2) of the ICCPR non derogable rights recognized as in most regional state constitutions.
On other hand, those non-derogable rights in the federal constitution ensure a better protection of
minorities right than that of ICCPR like Right to equality and the right to self-determination up to
secession guaranteed to each NNP even to small ethnic groups. Moreover, the constitution
expressly and impliedly imposes duties on all three arms of government during state of emergency
to prevent abuse of power and ensure the protection of fundamental human right and freedoms in
addition to averting the existed danger effectively.
21
References
Legal Instruments and Documents
Constitution of Federal Democratic Republic Of Ethiopia, Federal Negarit gazette, First Year,
proclamation No. 1/1995, Addis Abeba, 1995
UN Human Rights Committee, General Comment 29, States of Emergency (article 4), U.N.
Doc. CCPR/C/21/Rev.1/Add.11 (2001).
Thesis and Articles
Abdi Jibril Ali, “Distinguishing Limitation On Constitutional Rights From Suspension: A
comment on CUD case”, Haramaya law review, Vol.1, No.2, 2012
Aberra Dagafa, “The Scope of Rights of National Minorities under the Constitution of Federal
Democratic Republic of Ethiopia”, Series on Ethiopian Constitutional Law, vol. 1, AAU,2000
Belay Shibeshi, Minority Right Protection In Amhara Regional State: The case of Kimant
people in north Gonder, LLM thesis, AAU(unpublished) , 2010
Beza Dessalegn, “The Right of Minorities to Political Participation under The Ethiopian
Electoral system”, Mizan Law Review, Vol. 7, No.1, 2013
Florentina Harbo, “Secession Right – an Anti-Federal Principle? Comparative Study of Federal
States and the EU”, Journal of Politics and Law, 2008
Guyo Huka, Derogation Of Human Rights In a state of Emergency under Ethiopian
Constitution: A comparison of The Federal and State constitutions in Light of major Human
right instruments, LLM thesis, ECSU(unpublished),2013
Haileyesus Taye, Issues of Minority Rights in the Ethiopian Federation, ECMI Working paper,
2012
Tokuma Daba, The Legal and Practical Protection of the Rights of Minorities in Self-
Administering nations of Ethiopia :The case of Oromia, LLM thesis, AAU(unpublished), 2010
Modules and Books
Aberham Yohannes & Desta G/Michael, Administrative law Teaching Material, Prepared
under the Sponsorship of the Justice and Legal System Research Institute (unpublished), 2009,
Demelash Shiferaw,&Yonas Tesfa, Human Rights Law Teaching Material, Prepared under the
Sponsorship of the Justice and Legal System Research Institute(unpublished), 2009
Ronald L. Watts, Comparing Federal Systems(3rd ed.), Montreal & Kingston, McGill –
Queen’s University Press, 2008
