Non-Judicial Review in Ethiopia: Constitutional Paradigm, Premise and Precinct
| Pages | 120-139 |
| DOI | 10.3366/ajicl.2014.0083 |
| Author | K. I. Vibhute |
| Published date | 01 February 2014 |
| Date | 01 February 2014 |
Ethiopia, at different periods, has experienced imperial (1890–1974) and democratic ways of state governance (initiated in 1991), interrupted by the Italian occupation (1936–41) and military junta (1974–91).
See, M. Abir,
Proclamation No. 1/1995: A Proclamation of the Constitution of the Federal Democratic Republic of Ethiopia,
In Ethiopia, codification of the Constitution was started during the regime of Emperor Haile Selassie I (1930–74). Prior to 1931, Ethiopia had a complex traditional, unwritten constitution nested in the ideal of the monarchy. During his reign, the Constitution of 1931 and the Revised Constitution of Ethiopia of 1955 were enacted. In 1974, when the Emperor Haile Selassie I was overthrown by the Coordinating Committee of the Armed Forces, Police, and Territorial Army (commonly known as ‘Derg’), a pan-military dictatorship with communist aspirations, the 1955 Constitution was suspended. Ethiopia operated without any constitution for more than twelve years. The military regime enacted in 1987 the Constitution of the People's Democratic Republic of Ethiopia. The 1931 and 1955 Constitutions prominently legitimised imperialism, while that of 1987 witnessed oppressive Derg rule. See generally J. W. van Doren, ‘Positivism and the Rule of Law, Formal Systems or Concealed Values: A Case Study of Ethiopian Legal System’, 3
Conventionally, the constitution of a nation occupies the highest place in the hierarchy of its laws. It is the supreme law of the land. It operates as the basic norm in the national legal system. Every state power is derived from the constitution. The legal validity of any law or executive action depends on its derivation from the constitution. A law or an executive action in contravention thereof becomes unconstitutional.
See generally, M. D. A. Freeman,
A constitution, with a view to preserving and enforcing its supremacy, confers on a court of law, ordinary or constitutional, the power of judicial review and of the determination of legality of a legislative and executive action. It authorises such a court to declare a law or an action that goes against the letter or spirit of the constitution unconstitutional and thereby of no legal effect.
The FDRE Constitution, in line with this principle, occupies the highest place in the Ethiopian legal system and renders any law in contravention thereof invalid. It also imposes a constitutional duty on all citizens, state organs, political organisations and their officers to observe and obey the Constitution. Article 9(1) of the Constitution reads:
The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect.
All citizens, organs of state, political organizations, other associations as well as their officials have the duty to ensure observance of the Constitution and to obey it.
It is prohibited to assume state power in any manner other than that provided under the Constitution.
The FDRE Constitution, however, unlike those of most other countries in the African continent,
For example see the Constitutions of Burkina Faso, Cameroon, Chad, Niger, Sudan, Zaire and Zambia, which confer the power of judicial review on respective regular courts, and of Angola, Burundi, the Central African Republic, Equatorial Guinea, Gabon, Madagascar, Mali and Togo, and South Africa, which provide for constitutional review by constitutional courts.
neither allows regular courts of Ethiopia nor does it establish a constitutional court to interpret the Constitution and decide the constitutional validity of any ‘law’ or ‘decision of an organ of a state or a public official’. It confers the power of judicial review and of the interpretation of the Constitution exclusively on the HoF, which is a representative body of all the NN&Ps.FDRE Constitution,
However, it is argued that courts in Ethiopia have willingly relinquished their jurisdiction over constitutional matters. See T. S. Bulto, ‘Judicial Referral of Constitutional Disputes in Ethiopia: From Practice to Theory’, 19(1)
For further details see part IV of this article.
For further details see part II.B of this article.
This paper seeks to offer a constitutional perspective on the novel system of non-judicial review designed under the FDRE Constitution, to highlight and assess the rationality of the constitutional premise on which the non-judicial review is based, and to examine whether the courts still have some role to play in the contemporary non-judicial review. After giving a sketch of the constitutional paradigm of non-judicial review, the paper examines the theoretical and constitutional premise thereof. It then delves into a few pertinent issues relating to, or arising from, non-judicial review.
The FDRE Constitution, overhauling the unitary judicial system in the imperial era and the military junta, provides for the establishment of a three-tier ‘regular’
The phrase ‘regular’, it seems, is used in FDRE Constitution,
The material part of FDRE Constitution,
The Constitution vests the ‘judicial power’ of the federal government and the regional state governments in the Federal and State Courts, respectively.
FDRE Constitution,
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