The State of Emergency in Ethiopia. Compatibility to International Human Rights Obligations
Scientific Study 2020 19 Pages
List of abbreviations
Review of relevant Literatures
Finding and Discussion
3.1. Constitutionality of state of emergency and Human Rights protection in the Ethiopian legal system 10
3.2. Legal analysis of the State of emergency in Ethiopia: a compatibility checks on Ethiopia's International Human rights obligations
This paper examines the constitutional and legal derogations or limitations to which the enjoyment of Human Rights could be subjected, during a period of a State of Emergency in Ethiopia and explores Ethiopia's compatibility to International Human rights standards.
The scope of the Research is general and broad because of which it was not possible to identify and elaborate on each and every legislation and provisions that are inconsistent with constitutional and international human rights principles and propose recommendations. For example, regarding how courts, national human right institutions and etcetera are handling domestic application of international human rights instruments is not the scope here.
The research approach for this study was qualitative one. As a matter of the fact that the issue of human rights is subtle and the lack of adequate data system of the legal system, a multimethodology approach was deployed. Data collection tools employed is a Document analysis, qualitative interview and Literature review.
The study concludes that the declaration of emergency and the resultant derogation of human rights has been the normal form of exercise of state of sovereignty in Ethiopia. In addition to the governing norms and principles the country use as a precondition to justify the need to take emergency measures and giving power to the concerned organ, a proper institutional and procedural mechanism of checking and necessary control against a possible abuse of emergency powers is vital.
Key Words: Ethiopia, State of Emergency, Human Rights, International Obligations
List of abbreviations
Abbildung in dieser Leseprobe nicht enthalten
In common parlance, the “state of emergency” denotes a legal regime in which public institutions are vested with extraordinary powers to address existential threats to public order.1
States of emergency are critically important from a human rights perspective because the suspension of legal order often paves the way for systematic human rights violations. “The same political pressures that prompt states to declare states of emergency also generate strong incentives for states to violate their human rights obligations during emergencies.”2
International law's emergency constitutions3 limits the circumstances under which states may legally derogate from their international obligations to respect, protect, and fulfil civil and political rights. For the sake of brevity and scope of this term paper, we choose International Covenant on Civil and Political Rights (ICCPR),4 and African Charter on Human and People's Rights (ACHPR)5, as international and regional human rights instruments respectively and also international ‘soft law' standards like Siracusa Principles 6 and Paris minimum standards.7 Rakeb opined that one should not underestimate the importance of the extensive ‘soft law' in the field of human rights contained in such instruments as resolutions, declaration, recommendations, codes of conduct, standard minimum rules, guidelines, basic principles, model treaties and other instruments. Despite the fact that they are not binding on states, they often express human rights policy guidelines or provide detailed arrangements for legislative unification of domestic systems. In certain circumstances, she added, they constitute a first step towards the transformation of their provisions into ‘hard law' in the course of the codification process.8
The above human right instruments, including the ‘soft law' standards, inter alia, employ a number of inquiries to evaluate the legality of a state's derogation from general human rights standards. For instance, Evan J. Criddle & Evan Fox-Decent, in their work “Human Rights, Emergencies, and the Rule of Law” touches upon two grand questions ; first, are circumstances sufficiently dire to justify initiating a state of emergency? Second, if a state of emergency is justified, what measures may a state employ to address the emergency's threats to public order?9
The Ethiopian government is empowered to declare a state of emergency under the constitution 10 and it is supposed to entertain the above major questions pursuant to the substantive and procedural requirements in the binding international & regional covenants, and the ‘non-binding' 11 if not weak and non-applicable, international soft law standards.
As there are no stipulations on how states should implement human rights standards at international level, the implementation of international human right treaties is dependent on domestic law and entirely left to the states to decide on how obligations will be implemented. Domestic legal system must provide favourable legislative and administrative frameworks if treaty based guarantees are to be translated into reality for domestic beneficiaries.12 Therefore, the researcher is of the opinion that a country's compliance or non-compliance and the amount of enforceable weight it gives to the international law treaties it concludes partly stems from the manner (whether in the face of proper legislative and administrative frameworks or domestic legal and procedural loopholes) it ratifies and incorporates the same. The domestic application of international standards of human rights cannot be assessed based on merely studying the provisions of the Constitution13 so it must be clear that some level of empirical analysis in addition to the theoretical legal analysis would be essential. Generally speaking, this study offers a legal analysis of Ethiopian constitutional and institutional set up regulating state of emergency as to check whether it accords to the country's international human rights obligations or otherwise.
The overall objective this research is to provide a legal analysis of Ethiopian constitutional and institutional set up regulating state of emergency as to check whether it accords to the country's international human rights obligations or otherwise.
This study explores constitutionality of the state of Emergency regime in the current Ethiopian constitutional order. Put differently, how state of emergency is regulated in the Ethiopian constitutional and institutional set up without jeopardizing the non-derogable rights and freedoms of citizens.
The Research approach adopted to undertake this study is a qualitative one. This enabled me to give an interpretive measurement in the enforcement of human rights during state of emergency in Ethiopia. As a matter of the fact that the issue of human rights is subtle and the lack of adequate data system of the legal system, a multi-methodology approach was deployed which in this case includes:
1. A Document analysis to draw together existing data on the enforceability of human rights
2. Interview with relevant governmental and non-governmental officials to examine the weaknesses and fissures in the implementation of human rights in Ethiopia;
3. Literature review to amass in a form of a synopsis of what is known, and rigorously gauge the practices experienced to date. This assisted me to single out which of the practices in executing human rights correspond to wider patterns (compatibility to the international human rights standards), and which are particular to the Ethiopian milieu.
Review of relevant Literatures
In international jurisprudence, it seems there is no well-established standard as to dictate and govern the manner how states incorporate international human rights instruments in to their domestic law/national law or municipal law14 and enforce them. Liku15 posits in this regard that there are no stipulations on how states should implement human rights standards at international level, the implementation of international human right treaties is dependent on domestic law and entirely left to the states to decide on how obligations will be implemented. He added, domestic legal system must provide favourable legislative and administrative frameworks if treaty based guarantees are to be translated into reality for domestic beneficiaries. On the top of Liku's voice, Rakeb opines that regional and international human rights instruments can only be enforced and be effective where they are ratified and States Parties recognize the competence of the respective enforcement body.16
However, the above writers and several others have acknowledged the presence of two general mechanisms/methods regarding the incorporation of international covenants/treaties into domestic legal system of countries. They dichotomize these mechanisms as monist or automatic incorporation17 and dualist or legislative incorporation18 ;
The method of incorporation of international human right treaties in Ethiopia indicate that Ethiopia does not strictly adhere to one method of incorporation as the Ethiopian constitution provides for both methods.19 To explain this further, we refer to the work by Rakeb arguing, inter alia, that Ethiopia is a monist state mentioning the FDRE constitution's provision art.55 (12) which affirms, “The power to conclude international agreements is entrusted to the executive. The House of Peoples' Representatives (Parliament) has then to ratify them Once they are ratified, by art.9 (4) on the same constitution, all international agreements, including human rights instruments, are an integral part of the law of the land. No additional measure to be taken by the legislature is provided for in the Constitution.
However, art.2 (2) of the Federal Negarit Gazette Establishment Proclamation No. 3/1995 provides that all Laws of the Federal Government shall be published in the Federal Negarit Gazette, whereas art.2 (3) states that all Federal or Regional legislative, executive and judicial organs as well as any natural or juridical person shall take judicial notice of Laws published in the Federal Negarit Gazette. According to these provisions, Ethiopia could be classified as dualist as a national legislation needs to be promulgated in order for the provisions of international instruments to be implemented at the domestic level.20
The Bill of Rights in the Ethiopian Constitution, which is modeled on international human rights conventions, is further subjected to a special interpretative regime, which should comply with principles of the international law adopted by Ethiopia (art.13 (2)). However, international law is narrowly construed to cover only the UDHR and those conventions ratified by Ethiopia. In addition, art.9 (1) affirms the supremacy of the Constitution. It further noted that all laws, which contravene this Constitution, shall be of no effect. As no additional detail is provided for, it can be argued that where there is an inconsistency between the provisions of the Constitution and international human rights standards, the former prevails.21
In summary, the debate among theorists and courts regarding; Ethiopia's method of incorporating international Law instruments i.e. dualist Vs monist enigmas, hierarchy of the two laws conundrum and whether publication of a ratified international agreements must be a mandatory requirement for their enforcement in Ethiopia or not seems endless and troubling. So as to deal with the lingering turmoil around both jurists, officials and courts regarding Ethiopia's unclear position concerning the two renowned models of domesticating international human rights instruments, I argue that the problem is not for the country to be monist or dualist, but in the way immediate and direct enforceability of legally binding international human rights standards may be facilitated. As most writers has been discussing, Ethiopia's stance seems dualist22 in procedure and monist23 in substance.
* LL. B, LL.M, PhD Candidate, lecturer at Addis Ababa University, Centre for Human Rights Studies and also teaching Human Rights and Security currently under the aegis of Institute of Peace and Security studies, AAU
1 Evan J. Criddle & Evan Fox-Decent, (2012) Human Rights, Emergencies, and the Rule of Law, Human Rights Quarterly 34 (2012) 39-87, The Johns Hopkins University Press, p45
2 Ibid, p,46
3 ibid, 45,
4 International Covenant on Civil and Political Rights (ICCPR), adopted 1966; G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp.(No.16) at 59, U.N. Doc.A/6316 (1966), 999 U.N.T.S. 302, entered into force March 23, 1976. Ethiopia ratified the ICCPR in 1993. https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf.
5 African Charter on Human and Peoples' Rights, adopted 27 June 1981, O.A.U. Doc. CAB/LEG/67/3 Rev. 5, 1520 U.N.T.S. 217 (entered into force 21 Oct. 1986) accessed from http://www.humanrights.se/wp-content/uploads/2012/01/African-Charter-on- Human-and-Peoples-Rights.pdf, on 5/10/2017, Ethiopia ratified the African Charter in 1998.
6 Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights American Association for the International Commission of Jurists available @ http://icj.wpengine.netdna-cdn.com/wp- content/uploads/1984/07/Siracusa-principles-ICCPR-legal-submission-1985-eng.pdf. accessed on 5/10/2017
7 Richard B. Lillich:The Paris Minimum Standards of Human Rights Norms in a State of Emergency,American Journal of International Law October, 1985,Copyright (c) 1985 by the American Society of International Law; athttp://www.uio.no/studier/emner/jus/humanrights/HUMR5503/h09/undervisningsmateriale/ParisMinimumStandards.pdf. on 5/10/2017
8 Rakeb M. (2002), Enforcement of Human Rights in Ethiopia, Research Subcontracted by Action Professionals' Association for the People (APAP), p,10, Rakeb has been a human rights and gender consultant in the APAP
9 Evan J. Criddle & Evan Fox-Decent (2012), Human Rights, Emergencies, and the Rule of Law, Human Rights Quarterly, The Johns Hopkins University Press, vol. 34, p47
10 Federal Democratic Republic of Ethiopia Constitution, art 93(1)(a).
11 See the explanation given by Rakeb at note 8 on page,1 of this document
12 Liku Worku, Legislative proposals and application of human right treaties in Ethiopia, published on http://www.abyssinialaw.com/show/itemlist/category/1174-legislative-drafting-blog. accessed on 5/17/2017, Liku Worku is a founder and administrator of Abyssinia Law. He graduated From Mekelle University with LLB (2007) and the University of London with a LLM in Advanced Legislative Studies (2012).
13 Rakeb M. at note 8 above, p,4
14 Several writers usually use these three terms interchangeably and we employ them accordingly
15 Liku Worku, cited at note 12 above
16 Rakeb M. at note 8, p,13
17 See the article by Liku at note 12
20 Rakeb, at note 8, p,15
22 See the note by Rakeb about art.2 (2) and 2(3) of the Federal Negarit Gazette Establishment Proclamation No. 3/1995
23 Liku at note 12, says “Ethiopia has ratified an international agreement and decided to incorporate it into domestic law that incorporation seems to be done through a mere ratification proclamation adopting the treaty provisions entirely.”