The State of Emergency in Ethiopia:

Compatibility to International Human Rights

Obligations

Bekalu Wachiso

INSTITUTE OF PEACE AND SECURITY STUDIES (IPSS),

ADDIS ABABA UNIVERSITY, ETHIOPIA

Addis Ababa, Ethiopia

May 2017
 Abstracts

This paper precisely, has tried to examine the Ethiopian legal practice under the constitution
during a state of emergency and how the country has been entertaining the major questions of
human right protection obligations pursuant to the substantive and procedural requirements of
either the binding international & regional covenants, or the ‘non-binding’ if not weak and non-
applicable, international soft law standards. In order to meet its objectives, the study has deployed
a method of critical analysis against the primary and secondary sources of data. I have found that,
regarding Ethiopia’s unclear position concerning the status of international instruments in general
and human rights instruments in particular in the Ethiopian Constitution is not definite and is
subject to academic debate. Nevertheless, I argue that the problem is not for the country to be
monist or dualist, but in the way, of facilitating, immediate and direct enforceability of legally
binding international human rights standards. Implementation must be made in a clear legal
procedure so that it avoids ambiguities and keeps a proper balance of power and separation of the
seemingly overlapping responsibility between the law makings and enforcing bodies of the
government regarding the activities of drafting, ratifying and publication of international legal
instruments vis a vis national laws.

Key Words: Ethiopia, State of Emergency, Human Rights, International Obligations

1
Contents
Abstracts ...................................................................................................................................................... 1
List of abbreviations ................................................................................................................................... 3
CHAPTER ONE ......................................................................................................................................... 4
Introduction............................................................................................................................................... 4
CHAPTER TWO ........................................................................................................................................ 6
The Implementation Modes Operandi of International Human Rights Treaties in Ethiopia .................... 6
CHAPTER THREE .................................................................................................................................... 8
Constitutionality of state of emergency and Human Rights protection in the Ethiopian legal system ..... 8
CHAPTER FOUR..................................................................................................................................... 11
Legal analysis of the State of emergency in Ethiopia: a compatibility checks on Ethiopia’s
International Human rights obligations ................................................................................................. 11
Concluding Remarks ................................................................................................................................ 15

2
 List of abbreviations

UN United Nations

ICCPR International Covenant on Civil and Political Rights

HOPR House of Peoples Representatives

FDRE Federal Democratic Republic of Ethiopia

HOF House of Federation

UDHR Universal Declaration of Human Rights

ACHPR African Charter on Human and Peoples’ Rights

NHRIs National Human Rights Institutions

3
 CHAPTER ONE

Introduction

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 constitutions 3 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

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

4
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.

In so doing, this paper proceeds as follows; section one covers an introduction telling all the
general issues capturing attention of this paper. Briefly discusses the Ethiopian method of
incorporation of international human rights instruments in to domestic system of law is section
two. 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 a favourable legislative and administrative framework if
treaty based guarantees have to be translated into reality for domestic beneficiaries. 12 Therefore,
the writer 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. Under section three, I

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).

5
 13
explore constitutionality of the state of Emergency regime in the current Ethiopian
constitutional order. This is to shed some light on how the Ethiopian constitutional and
institutional set up have been regulating state of emergency, without jeopardizing the non-
derogable rights and freedoms of citizens. The domestic application of international standards of
human rights cannot be assessed in the abstract based on merely studying the provisions of the
Constitution 14 so it must be noted that absence to offer empirical analysis if not theoretical legal
analysis, would be limitation of this term paper. For example, regarding how courts, national
human right institutions and etcetera are handling domestic application of international human
rights instruments is none of my scope here. In the same vein, section four 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 final
section in this paper inserts the last thread in to the eye of the needle and finishes sewing the
cloth to be covering every part of this document, and I am curious enough to see that happen at
last.

CHAPTER TWO

The Implementation Modes Operandi of International Human Rights Treaties in Ethiopia

In international jurisprudence, there is no well-established standard as to govern the manner how

states incorporate international human rights instruments in to their domestic law15 and enforce
them. Liku 16 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 can be translated into reality for domestic
beneficiaries. On the top of Liku’s voice, Rakeb opines that regional and international human

13
On October 9, 2016, the Ethiopian government announced a country-wide six-month state of emergency
14
Rakeb M. at note 8 above, p,4
15
Several writers usually use these three terms interchangeably and I use them accordingly.
16
Liku Worku, supra note 12

6
rights instruments can only be enforced and be effective where they are ratified and States
Parties recognize the competence of the respective enforcement body. 17

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
incorporation 18 and dualist or legislative incorporation19.

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.20 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.21

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

17
Rakeb M. at note 8, p,13
18
See the article by Liku at note 12
19
ibid
20
ibid
21
Rakeb, at note 8, p,15

7
contravene this Constitution, should have 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.22

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. Nevertheless,
this does not mean I am of no position regarding the debate thereof. As most writers has been
discussing, Ethiopia’s stance seems dualist 23 in procedure and monist 24in substance. Therefore,
I share the idea that “nothing is more essential to a proper grasp of international law than a
clear understanding of its relation to state law”25. In addition, the crux of the problem lies in the
method of Ethiopia’s incorporation (hanging between the two) which creates a proper legislative
analysis lacuna on the part of the lawmaking body supposed to ratify the international
agreements concluded by the executive body. 26 Moreover, this confusing method eventually
creates practical problems. As Liku rightly put it, “nonexistence or lack of awareness because of
the confusion created by the poor analysis of legislative proposals with international human
rights treaty provisions and this eventually led drafters and other officials in legislative drafting
process to focus only on constitution and other domestic laws ignoring compatibility with
international obligations.”27

CHAPTER THREE
Constitutionality of state of emergency and Human Rights protection in the Ethiopian legal
system

In this section the writer’s motive is to shed some light on how state of emergency is regulated
in the Ethiopian constitutional and institutional set up in such a way as wisely as possible to the
survival of the democratic constitutional order and safeguarding [both in the institutional and

22
ibid
23
See the note by Rakeb about art.2 (2) and 2(3) of the Federal Negarit Gazette Establishment Proclamation No. 3/1995
24
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.”
25
JJ stark, 1994, International law, p,63 as cited in Takele S. (2009), The Monist-Dualist Divide and the Supremacy Clause:
Revisiting the Status of Human Rights Treaties in Ethiopia, Vol.23, No.1, Journal of Ethiopian Law, P.134.
26
See the provision under article 55(12) of FDRE constitution
27
Liku at note 12

8
procedural aspects of it] 28 fundamental freedom of citizens. I believe that the significance of
political power and keeping the security of the state is an indisputable concept, but what matters
most in this ultramodern age is the extent and manner of exercising that political power, which
is at the epicenter of state’s raison d'être 29, to maintain the security and survival of the state
during threat. Gebreabzgi underscores that, “there is a natural tension between maintaining a
stable political power, and freedom-security, and freedom- in which both are essential values
for the society.”30 This section also attempts to touch up on the organs of government with whom
the power to declare state of emergency resides, the requirements that need to be fulfilled for a
valid declaration, and the protections against the abuse of emergency powers.

As we know, in the political history of Ethiopia, a document of 11 chapters and 106 articles, the
FDRE constitution is the fourth written constitution. And the promise to ‘redress’ past and
existing ‘injustices’ is vowed in the preamble, the very inception of the constitution next to the
page of the proclamation no.1/1995/.

As far as human and democratic rights, provisions are concerned, as Yehenew 31opined, “Nearly
one third of the text of the constitution is devoted to fundamental Human Rights and freedoms.
These are categorized as “Human Rights”32 and “Democratic Rights”33 and under article 13(2),
“Rights and freedoms” are to be interpreted in conformity with the principles of the UDHR, the
ICCPR and other international instruments ratified by the country. However, as Getahun posits,
“Recognizing human rights and the rule of law and incorporating those into domestic system of
law is never considered as an end in itself. That will have a meaning when credible and effective
institutional mechanisms for promotion and protection are in place. For those reasons,
international and regional human rights treaties consider the principle of effective remedy as a

28
Gebreabzgi, W. (2011). The Extent of Reason of State in the Ethiopian Constitutional Order: The Quest for Restraining and
Legitimizing, A Thesis Submitted to The School of Graduate Studies, School of Law, Addis Ababa University, In Partial
Fulfilment of the Requirements for The Masters of Laws (LLM) Degree in Constitutional and Public Law. P,13
29
I acknowledge Niccolo Machiavelli (1469-1527), the first thinker who champions this term to be as many would say they owe
him, even though he did not use it. Supra note p,15, from Friedrich Meinech, (as cited in Gebreabzgi, W. (2011), p,26)
30
Gebreabzgi at note 30 above, p, 20
31
Yehenew, T.(nd.). State of Emergency and Human Rights Under The 1995 Ethiopian Constitution, pdf. Pp, 79-113 available at
http://www.abyssinialaw.com/researches/category/26-human-right law?download=1398:state-of-emergency-and-human-rights-
under-the-1995-ethiopian constitution. ,pp,103,
32
See the 1995 FDRE constitution provisions under articles 14-28
33
Ibid, articles 29-43

9
principle that contributes to the realization of the promise to respect, protect and fulfil human
rights.” 34

Saving that as it may, regarding with whom the power resides to declare state of emergency, the
1995 FDRE constitution directly and/or impliedly indicates that Ethiopia exercises both models
i.e. Parliamentary and Executive, of declaring emergency, at least in the steps and approval in the
process therein.35

Regarding the non-derogable rights in the time of state of emergency, the 1995 FDRE
36
constitution lists out a number of Human Rights and freedoms not to be suspended ,even
during in such circumstances that could possibly endanger public safety and social security. 37

Regarding constitutional safeguards against abuse of emergency powers, Yehenew argues, “The
importance of precise and effective national legislation and effective domestic control
mechanisms cannot be overemphasized.38 The question here is the adequacy of the substantive ,
and procedural safe guards the system has provided against abuse taking in to account to the
legal status of the emergency decree varies before, and after its submission to the parliament.
The constitution attempts to incorporate some substantive principles, which are help full to safe
guard against abuse of state of emergency. 39 Accordingly, various arguments are entertained
regarding the substantive and procedural controlling mechanisms in the Ethiopian context and
particularly the role of the judiciary to check executive acts and decide on the fate of emergency
measures given the fact that the constitution gives the power to interpret the constitution.40 In
addition, the HOF as a political organ is not expected to be independent and impartial institution

34
Getahun Kassa (nd.). National Human Rights Institutions in Ethiopia: Roles and Challenges in the Protection of Human
Rights, LL. B, LL.M, PhD Candidate, lecturer at Addis Ababa University, Centre for Human Rights Studies, p, 3
35
As I refer to the works of Gebreabzgi(pp,58-60) and Yehenew (p,104), at notes 30 and 33 above respectively, they define
executive model as when the council of ministers have the power to declare emergency in the manner stated under art.93(1)(a)(b)
of the constitution and the parliamentary model when the decree by the council of ministers requires approval and renewal of the
HOPR so that the emergency decree will continue with force of law.
36
The constitution provides the list of non- derogable rights as provided in Art 93(4)(c) are: the nomenclature of the state as the
federal democratic republic of Ethiopia (art 1); the prohibition against inhuman treatment (Art 18); the right to equality (Art 25);
and the right to self-determination, including the right to secession, and language, culture, and history of the nation, nationality,
and people (Art 39 (1)(2)).
37
“The circumstances of breakdown of law and order that endangers the constitutional order should be something which cannot
be controlled by the less restrictive measures of the ordinary law. As state of emergency is an exceptional situation, the
emergency measures are to be taken exceptionally as a last resort when possible ordinary law restrictive measures could not avert
the crisis.” Gebreabzgi, at note 30 above, p,65
38
Yehenew, p,107 at note 33 above,
39
Gebreabzgi, p,65, cited at note 30 above
40
See FRDE constitution art.84 (2)

10
to dispose constitutional disputes of emergency laws, which involves political issues with an
impact on the rights and freedoms of citizens. 41 In addition, The Constitution provides for the
establishment of state of emergency inquiry board, which has the power, among other things, to
inspect and follow up all the measures taken during state of emergency and ensure the
prosecution of perpetrators of inhuman acts.42

In summary, though the argument with divergent views, regarding the aforementioned
statements, seems to continue, I can say that, in such time of state of emergency in Ethiopia, it is
clear that situations that pursue the declaration claim the national law to give a necessary power
to the relevant organ of government. However, without the necessary substantive and procedural
mechanisms to control that power so that that organ will not abuse it is equally imperative if this
country has to comply to its international human rights obligations. Therefore, I dedicate the next
chapter of this paper to entertain issues in that regard.

CHAPTER FOUR
Legal analysis of the State of emergency in Ethiopia: a compatibility checks on Ethiopia’s
International Human rights obligations

As I have already mentioned under section three, fundamental human rights and freedoms are
not absolute. Rakeb posits that infringement of rights will only be justified as reasonable
limitation only if there is a strong purpose, which is valid in an open and democratic society
based on human dignity, equality and freedom. And she suggests, care should further be taken
not to exceed the purpose and infringe rights more than there is need to..43

All the major international and regional Human Rights instruments, with the notable exception of
the ACHPR,44 recognize the right of states to suspend Human Rights norms contained thereof, in

41
Gebreabzgi, p,70, cited at note 30 above, he argues, “the parliament has enacted laws that clearly exclude the courts from the
power to review constitutionality of regulations, and directives which are executive acts in consistent with the spirit of the
constitution. And he mentions The council of constitutional inquiry proclamation No. 250/2001 and the consolidation of the
house of the federation and definition of its powers and responsibilities proclamation No. 251/2001 to substantiate his argument.
(see, p,69)
42
FDRE constitution, art, 93(6)
43
Rakeb M. p,13at note 8,
44
The exception with the ACHPR context is because of the absence of the derogation clause in it. However, Ouguergouz as cited
in the work of Belay,” A Critical Analysis of Non-Derogable Rights in A State of Emergency Under the African System: The Case
of Ethiopia and Mozambique, 2005” p,19 argued that the absence of a derogation clause in the ACHPR does not mean that states
cannot derogate from the provision of the ACHPR. He argued that states wishing to derogate might rely on the rules relating
termination and suspensions of treaties by taking into account international law, in particular the Vienna Convention on the Law
of Treaties (VCLT).

11
cases of exigencies that threaten the life of the nation. Similarly, these instruments lay down
conditions and requirements for a valid derogation as well as enumerate certain rights that may
not be suspended or derogated even during gravest circumstances. 45 In addition, the soft law
standards; the Siracusa Principles, although an outcome of a non-governmental conference,
contains a valuable reference for the interpretation of the derogation clause provided in the
ICCPR. It reflects a need for the examination of particular circumstances warranting derogation
to implement the rule of law effectively. It clarifies among other things, the meaning of public
threat affecting the life of the nation, proclamation, notification and termination of state of
emergency and non-derogable rights.46 Moreover, The Paris minimum standards are intended to
ensure among other things, that even when a government declares a bona-fide state of
emergency, the basic human rights, continue to be observed and respected.47

And it is clear then that my intention in this section is a legal analysis of Ethiopian constitutional
and institutional set up regulating state of emergency as to check whether it accords or otherwise
to the country’s international human rights obligations under the above international and regional
instruments.

Under the Constitution of Ethiopia, international law ratified by Ethiopia, is considered as part of
the law of the land.48 Ethiopia adopted the ICCPR in 11 June 1993 and ratified the ACHPR in 15
June 1998. Hence, they are considered as part of the law of the land.49 However, as we can see
from the following discussions, Ethiopia in its constitutional provisions is showing non-
conformity to the non-derogable rights in ICCPR.

The FDRE Constitution does not recognize the following non derogable rights under ICCPR;
right to life50, prohibition of torture51, freedom of religion, thought and conscience52, the non-
imprisonment for contractual obligation53, non-retro-activity of criminal law 54 and recognition

45
Yehenew, p,82, as note 33 above
46
Belay, p,16, at note
47
Richard B. Lillich, p, 79, at note 7 above
48
Article 9(4) of the FDRE constitution
49
However, the Federal Negarit Gazette proclamation no 3/1995 provides that judicial organs to take judicial notice of laws
published in the Negarit Gazette. These instruments have not been translated and published in the Negarit Gazette, Belay p,39 at
note 46 above
50
ICCPR, art.6
51
Ibid, art.7
52
Ibid, art,18
53
Ibid, art.11
54
Ibid.art.15

12
as a person before the law 55. The right to life is derogable under the Constitution, as it is not
56
provided in the list of non-derogable rights of ICCPR. The Constitution under article 18
provides that everyone have the right to protection against cruel, inhuman or degrading treatment
or punishment. However, torture, which has, attended the status of jus cogens or peremptory
norms, is not included in this provision or in other provisions of the Constitution. 57Despite this,
the Constitution adds to the list a set of rights that are not enshrined in the ICCPR, nomenclature
of the state, the right to equality, self-determination and prohibition of trafficking in person.
There is no provision both in the ACHPR and in the ICCPR, which designates nomenclature of
the state as a right. Moreover, trafficking in human being for whatever purpose is prohibited.
Unlike the ICCPR, prohibition of trafficking is a non-derogable right under the Constitution.
Although the right to self-determination is provided under the ICCPR and other human rights
instruments, the unconditional right to secede is not incorporated in the conventions. The
ACHPR also provides for the right to self-determination under article 20.58

For the same reason, the Siracusa principles and the Paris minimum standards provide a number
of principles as to govern the characteristic and the circumstances under which state of
59
emergency should be declared. First, there should be an exceptional threat threatening the life
of the nation. Art 4(1) of ICCPR Provides that” in time of public emergency which threaten the
life of the nation…. the state parties to the covenant…. may take measures derogating from their
obligation under the covenant…” Secondly, the principle of proclamation; Art 4(1) of the
ICCPR provides that the existence of a public emergency threatening the life of the nation should
first be “officially proclaimed” before the state party derogates from its obligation in the
covenant. Thirdly, the principle of proportionality, Art 4(1) of the ICCPR provides that “the
state parties to the covenant may take measures derogating from their obligation…to the extent
strictly required by the exigencies of the situation, in time of emergency.” Fourthly, the principle
of non-discrimination; the derogation measures shall apply equally to all persons in the territory
where by the state of emergency is declared without discrimination solely on the grounds of race,
color, sex, language, religion, or social origin. Fifthly, the principle of consistency; the
derogation measure by the state parties to the ICCPR shall not be inconsistent with their
55
Ibid art.16
56
See the FDRE Constitution, art 93 (4)(b).
57
Yehenew, p,107, at note 33 above
58
Belay, pp,34-39, at note 46 above
59
Gebreabzgi, pp 39-40, at note 30 above

13
obligations under international law as it is provided in Art 4(1) of the covenant. It refers to the
consistency of measures of derogation with the states’ other international obligation. Sixthly,
the principle of non-derogability of fundamental rights; notwithstanding the state parties have the
sovereign right to take derogation measures from their obligation in the covenant as per Art 4(1)
of the ICCPR. In addition, for these substantive and procedural principles are to be maintained,
the above two soft law standards want to make sure that every state that assumes or exercises
emergency power shall respect the following institutional and procedural safe guards.60

Firstly, the constitution of every state shall define the procedure for declaring state of
emergency; whenever the executive authority is competent to declare state of emergency, such
official declaration shall always be subject to confirmation by the legislature, with in the shortest
possible time. Secondly, the judiciary shall have the power to entertain cases of emergency
measures. It shall have the power to decide whether an emergency legislation is in conformity
with the constitution, and the particular exercise of emergency power is in conformity with the
constitution and emergency legislation of the state. Thirdly, although the right to fair and public
hearing in the determination of a criminal charge and the protection against arbitrary arrest and
detention may be subject to legitimate limitations, states must fulfil some procedural standards.
These are like; all arrests and detentions and the place of detention shall be recorded and made
available to the public without delay, the right to fair and speedy trial, right to presumption of
innocence, the right to free legal assistance, prohibition of double jeopardy and etcetera.61

Concisely, I have explored that Ethiopia fulfils principles such as of proclamation. As state of
emergency is an exceptional situation, the emergency measures are to be taken exceptionally as a
last resort when possible ordinary law restrictive measures could not avert the crisis. 62 The
principle of proportionality is also provided under the FDRE constitution. 63 In addition, one can
see the principle of non-derogability in the same constitution.64 However, not all of the stated
rights in the ICCPR/ACHPR, however, are guaranteed as non-derogable under the FDRE
constitution. Moreover, Minimum procedural rights of the arrested and the accused, which are

60
Ibid, p,42
61
Ibid, pp,43-44
62
See the FDRE Constitution, art 93 (1)(a).
63
Ibid, Art 93 (4) (b) empowers the council of ministers to suspend the rights and freedoms in the constitution to the extent
necessary to avert the conditions that required the declaration of a state of emergency.
64
See the list of non derogable rights at note 38 above

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fundamental to human dignity, but not necessary to any conceivable emergency crisis are not
guaranteed in the catalogue of non-derogable rights and freedoms in the constitution. It is very
essential for all arrests, and detentions together with the place of detention to be recorded, and
made available to the public immediately.65 In spite of its demand from the perspective of rule of
law, and experiences from national and international standards, the FDRE constitution, Yehenew
66
disputes, does not give such procedural and institutional protection towards persons charged
with a criminal offence during emergency. There is no constitutional guarantee so that the
government will not try civilians establishing a military, or a special tribunal, regardless of its
independence, impartiality, and providing of procedural safeguards. There is no guarantee that
the government will not derogate the right of access to court. There is no guarantee that the
government will not derogate the minimum procedural rights of persons detained during
emergency.

Moreover, the judiciary does not have also the power to entertain the constitutionality of
emergency laws. It could not decide whether an emergency legislation is in conformity with the
constitution; it could not decide whether any particular exercise of emergency power is in
conformity with the constitution.67

Concluding Remarks

To solve the lingering turmoil around 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. Implementation must be made in a clear legal procedure so that it avoids
ambiguities and keeps a proper balance of power and separation of the seemingly overlapping
responsibility between the law makings and enforcing bodies of the government regarding the
activities of drafting, ratifying and publication of international legal instruments vis a vis national
laws.

65 Gebreabzgi, p66, at note 30 above

66 Yehenew, pp,107-113, at note 33 above
67 The FDRE Constitution Art 83(1) states all constitutional disputes shall be decided by the HOF as cited in Gebreabzgi, p67, at
note 30 above

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I have seen that the declaration of emergency and the resultant derogation of human rights has
been the normal form of exercise of state of sovereignty. This is because states at some period
face up some form of emergencies that threatens the life of the nation. In such situations, it will
be necessary for states to take required measures to safeguard the life of the nation. These
measures, however, may derogate basic human rights recognized under the different
International human rights instruments and a couple of soft law principles and standards if not
binding as well as the constitutions of states.

In addition to the governing norms and principles countries 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 also vital. And Ethiopia’s case is not an exception and it is a country
allegedly accused by organizations like Human Rights Watch and Amnesty International of
rampant violations of Human Rights to happen not only during state of emergency scenarios, but
also under normal circumstances. Largely, status of international instruments in general and
human rights instruments in particular in the Ethiopian Constitution is not definite and is subject
to academic debate. For instance, as in the work of Getahun that mentions inter alia,
international reports on the Ethiopian National Human Rights Institutions’ Human Rights
protection practice, we can easily witness the fact that the above accusation is not made on
account of a bad faith. Let me quote Getahun verbatim, as follows.

“The recommendations stemmed from the assumption that the institutions still need to
implement more works to become compliant to the Paris Principles and that there are
evidences of human rights violation in the country.” 68 In the same article, after
mentioning the NHRI’s challenges such as; credibility, accessibility and etcetera,
Getahun has concluded suggesting; “It is thus for the institutions to earn credibility
through independent and effective performance. Answer to this is publishing independent
human rights reports; seek redress for violations identified or at least advocate for
redress; take steps to guarantee access and enhance pluralism. Regrettably the
institutions do not have much to show on this.”69

68
Getahun, k., p,26, as cited at note 36 above
69
ibid

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