By Mark Bowen

A leading expert on the Ethiopian constitution says the prevailing political climate has seriously undermined the supremacy of the law of the land as well as the rule of law in the country.

Dr Fasil Nahum, a constitutional law expert and author of Constitution for a Nation of Nation, said: “The post-election situation has put the nation almost on the brink of ‘unconstitutional state’ where key constitutional provisions seem meaningless.”

Nahum, who has worked as a political and constitutional adviser for nearly three decades, has emphasized that both the government as well as the opposition need to defend and respect the constitution at any cost. Asked if the current state of emergency imposed by Prime Minister Meles Zenawi was constitutional, he said: “Though the PM felt that there was a need to take special measures to ensure peace and security, the power to impose such a measure is vested in the Council of Ministers.”

Article 77 (10) of the Constitution of the Federal Democratic Republic of Ethiopia stipulates that the Council of Ministers has the power to declare a state of emergency and in doing so, it shall, within the time limit prescribed by the Constitution, submit the proclamation declaring a state of emergency for approval by the House of Peoples’ Representatives.

He explains that Article 93 states that if a state of emergency, or anything to that effect, is declared when the House of Peoples’ Representatives is in session, the decree must be submitted to the House within forty-eight hours of its declaration. “The decree, if not approved by a two-thirds majority vote of members of the House of peoples’ Representatives, shall have no effect,” said Dr Nahum. He noted that the legality of any state of emergency without pursuing these constitutional procedures would be unconstitutional and could open the door for tyranny and despotism.

Dr Nahum said that the yardstick of a democratic system and the prevalence of the rule of law was the full implementation of the constitution. “The constitution is supreme. I believe the emergence of a strong opposition within the constitutional framework should not be viewed as a threat to the government. It should rather be applauded as democracy is unthinkable without contending political parties who present to the electorate divergent programmes to choose from.”

Regarding the dispute about alleged vote rigging, he advised that it must be investigated thoroughly and all parties should use the legal avenues that the constitution guarantees them. However, he underlined that if the opposition feel threatened and scared because of suppressive measures. “As a constitutional lawyer, I measure the legality of any exercise in light of the constitution. It seems to me that the critical question at this moment is whether the constitution has been violated or not.

“If there are any actions that compromise the constitution, the House of Peoples’ Representatives should take all the necessary measures to rectify any unconstitutional trends,” he noted.

According to Dr Nahum, if citizens have been treated in a way, which is contrary to the Constitution, they should legally challenge any unconstitutional actions whether individually or in groups. “No individual or state body can take away their constitutionally enshrined rights.”

Dr Nahum highlighted that some vigilantes within the security forces might violate human rights and civil liberties without knowing its illegality. “We should all make sure that security forces do not commit serious crimes and human rights abuses by detaining, torturing or killing members of the opposition. Anyone who commit or authorises such a crime should be brought before court to face the consequence of their actions.

He claims that key human rights provisions make up one-third of the constitution covering a wide range of civil, political, economic, social and cultural rights. Nahum admits that the implementation of these rights has posed a critical challenge especially at this time.

Opposition parties have been alleging that their members and supporters have been subjected to extrajudicial killings, torture, beatings, mass arrest, house arrest of key political figures, illegal surveillance and fair denial of a public funded media. In a heavy-handed crackdown, troops loyal to Prime Minister Meles opened fire on Monday and killed over 29 people and wounded over one hundred others. Thousands of students, opposition supporters and leaders have been arrested by security forces, which many believe is a key test to the commitment of the government to respecting the constitutional order.

“I don’t personally wish to see the country sliding back to a police state. The constitution should be respected unconditionally. If that does not happen in earnest, it would be the end of the Ethiopian constitution, dead and buried,” Nahum said.

Ethiopia has ratified a number of international treaties and conventions including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which have been incorporated in the constitution as per Article 9, which also declares the supremacy of the constitution. END

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NOTES

Key provisions of the Ethiopian constitution related to human rights.

Article 14 Rights to life, the Security of the Person and Liberty. Every person has the inviolable and inalienable right to life, the security of person and liberty.

Article 15 Right of Life Every person has the right to life. No person may be deprived of his life except as a punishment for a serious criminal offence determined by law.

Article 16: Every one has the right to protection against bodily harm.

Article 17 Right to Liberty
1.
2. No one shall be deprived of his or her liberty except on such grounds and in accordance with such procedures as are established by law.
No person may be subjected to arbitrary arrest, and no person may be detained without a charge or conviction against him.

Article 18 Prohibition against Inhuman Treatment: 1. Everyone has the right to protection against cruel, inhuman or degrading treatment or punishment. 2. No one shall be held in slavery or servitude. Trafficking in human beings, for whatever purpose is prohibited.

Article 19 Rights of Persons Arrested
1.
2. Persons arrested have the right to be informed promptly, in a language they understand, of the reasons for their arrest and of any charge against them.
3. Persons arrested have the right to remain silent. Upon arrest, they have the right to be informed promptly, in a language they understand, that any statement they make may be used as evidence against them in court.
4. Persons arrested have the right to be brought before a court within 48 hours of their arrest. Such time shall not include the time reasonably required for the journey from the place of arrest to the court. On appearing before a court, they have the right to be given prompt and specific explanation of the reasons for their arrest due to the alleged crime committed.
5. All persons have an inalienable right to petition the court to order their physical release where the arresting police officer or the law enforcer fails to bring them before a court within the prescribed time and to provide reasons for their arrest. Where the interest of justice requires, the court may order the arrested person to remain in custody or, when requested, remand him for a time strictly required to carry out the necessary investigation. In determining the additional time necessary for investigation, the court shall ensure that the responsible law enforcement authorities carry out the investigation respecting the arrested person’s right to a speedy trial.
6. Persons arrested shall not be compelled to make confessions or admissions that could be used in evidence against them. Any evidence obtained under such coercion shall not be admissible.
Persons arrested have the right to be released on bail. In exceptional circumstances prescribed by law, the court may deny bail or demand adequate guarantee or the conditional release of the arrested person.

Article 21 The Rights of Persons Held in Custody and Convicted Prisoners
1.
2. All persons held in custody and persons imprisoned upon conviction and sentencing have the right to treatments respecting their human dignity.
All persons shall have the opportunity to communicate with, and to be visited by, their spouses or partners, close relatives, friends, religious counselors, medical doctors and their legal counsel.

Article 29 Right of Thought, Opinion and _Expression
1.
2. Everyone has the right to hold opinions without interference.
3. Everyone has the right to freedom of _expression without any interference. This right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any media of his choice.
4. Freedom of the press and other mass media and freedom or artistic creativity is guaranteed. Freedom of the press shall specifically include the following elements:
5. Prohibition of any form of censorship.
6. Access to information of public interest
7. In the interest of the free flow of information, ideas and opinions that are essential to the functioning of a democratic order, the press shall, as an institution, enjoy legal protection to ensure its operational independence and its capacity to entertain diverse opinions.
8. Any media financed by or under the control of the State shall be operated in a manner ensuring its capacity to entertain diversity in the _expression of opinion.
9. These rights can be limited only through laws which are guided by the principle that freedom of expression and information cannot be limited on account of the content or effect of the point of view expressed. Legal limitations can be laid down in order to protect the well being of the youth, and the honour and reputation of individuals. Any propaganda for war, as well as the public expression of opinion intended to injure human dignity, shall be prohibited by law.
Any citizen who violates any legal limitations on the exercise of these rights may be held liable under the law.

Article 30 The Right of Assembly, Demonstration and Petition
Everyone has the right to assemble and to demonstrate together with others peaceably and unarmed, and to petition. Appropriate regulations may be made in the interest of public convenience relating to the location of open-air meetings and the route of movement of demonstrators or, for the protection of democratic rights, public morality and peace during such a meeting or demonstration.
1.
This right does not exempt from liability under laws enacted to protect the well-being of the youth or the honour and reputation of individuals, and laws prohibiting any propaganda for war and any public _expression of opinions intended to injure human dignity.

Article 31 Freedom of Association
Every person has the right to freedom of association for any cause or purpose. Organizations formed, in violation of appropriate laws, or to illegally subvert the constitutional order, or which promote such activities, are prohibited.

Article 32 Freedom of Movement
1.
2. Any Ethiopian or foreign national lawfully in Ethiopia has, within the national territory, the right to liberty of movement and freedom to choose his residence, as well as the freedom to leave the country at any time he wishes to.
Any Ethiopian national has the right to return to his country.

Mark Bowen is a Paris-based freelance journalist with particular interest in human rights in the Third World.