The Bill of Rights gives legal protection to the ‘first generation’ rights also known as ‘negative’ rights.
More or less similar to the ICCPR, the Constitution guarantees a fairly comprehensive catalogue of civil and political rights enumerated in Chapter three. Most of the rights are formulated in rather general terms. Detailed provisions are expected to be found in ordinary legislation.
Beneficiaries of the Civil and Political Rights: Who is Protected?
Most of the rights in the Ethiopian Bill of Rights are for the benefit of ‘everyone’, ‘every person’ or phrased in the negative tense, may be denied to ‘no one’. For example, art.15 of the Constitution provides that every person has the right to life, and art.17 states that no one shall be deprived of his or her liberty. These rights are accorded universally; i.e., to all human beings.
On the other hand, other rights are accorded to specific group of beneficiaries. For instance, art.20 restricts the right to a public trial by an ordinary court of law within a reasonable times to accused persons, while art.32 only recognizes the right to freedom of movement within the national territory. Similarly, art.35 is restricted to women, while art.36 to children. The right to vote (art.38) is restricted to every adult citizen.
The next question is whether rights accorded to ‘everyone’ or ‘every person’ are also applicable to juristic persons. Though the Constitution does not specifically extend the application of all rights to juristic persons, it requires the application of certain rights to juristic persons. For instance, art.29, which guarantees the right of thought, opinion and expression, provides that in the interest of the free flow of information, ideas and opinions, which 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 (emphasis added). Though some rights may not reasonably be applied to juristic persons, the application of certain rights should be
extended to juristic persons depending on the nature of the rights and that of the juristic person.
Duties under the Civil and Political Rights: Who is Bound?
Article 13 provides that the legislature, executive and judiciary are all bound to respect and enforce the provisions of the Bill of Rights. Article 9(1) further states that any law, customary practice or decision of an organ of state or a public official, which contravenes this Constitution shall be of no effect (emphasis added). A person may therefore challenge the actions of any of these state organs for violating his or her human rights and for not abiding by its duties under the Bill of Rights.
The term legislature refers to the Parliament, the regional states legislatures and municipal councils. The legislature’s primary responsibility is the making of legislation, which they have to make sure it complies with the provisions of the Bill of Rights. A provision of a federal or regional statute, a ministerial regulations or other statutory regulation, which is inconsistent with the Bill of Rights, is of no effect. There is no doubt that the availability of specific national legislation play a major role in the implementation of human rights at the country level, though legislation might not be sufficient on its own. In fulfilling its duty to fill in the gap and bring the constitutional principles into reality, the legislature has enacted specific laws, such as the Press Law Proclamation No. 34/92, the Proclamation Establishing the National Election Board and the Labour Law Proclamation No. 42/93
Legislation, such as the Family Law, Penal Code and Criminal Procedure Code are also being revised.
Though the process of bringing national legislation in line with constitutional principles and international standards of human rights is to be encouraged, the process is rather slow and at times incorporates provisions, which are still inconsistent with international standards. In addition, there are still numerous gaps to be filled such as a national legislation to prohibit or prevent discrimination, which provides for the application of the right to equality, provides remedies for victims of discrimination and persons whose right to equality is infringed by government authorities or private individuals and determines how and what other forms of differentiation amount to discrimination. Enacting legislation, such as law of evidence is also fundamental in the administration of justice.
On the other hand, the first aspect of privacy as provided by art. 24(2) of the Constitution, consists of a right to be protected from intrusion against an individual’s home, person or property from the law, giving the individual a sphere of personal autonomy. However no right is absolute, more so for the right to privacy. The Constitution puts a limitation clause to the right to privacy for purposes of ‘safeguarding the national security or public peace, the prevention of crimes or the protection of health, public morality or the rights and freedoms of others’. But what amounts to a violation of ‘public morality’ or ‘the rights
and freedoms of others’? Terms of such nature may be interpreted to incorporate a wide variety of acts, making the need for elaboration very essential. Legislation that properly defines the power of the authorities is crucial, as wide discretionary powers must be avoided in order to safeguard the right to privacy.
With respect to the implementation of ratified international human rights documents at the domestic level, ICCPR generally leaves it to the State Party to choose its method of implementation of civil and political rights in its territory within the framework set out in art.2. Article 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. To date, only the Convention on the Rights of the Child among the international human rights instruments ratified by Ethiopia, is given the force of domestic law by the Federal Negarit Gazette. However, even in this instance, the Federal Law Gazette did not translate the provisions of the Convention into the working language of Ethiopia and publish them. While Amharic is the working language of the Federal Government, members of the Federation may by law determine their respective working languages.
The Committee on the Rights of the Child has further put forward its concerns that the Convention has yet to be published in the ‘Official Gazette’, as recommended in the Committee’s concluding observations to the State party’s Initial Report.
The Committee was also concerned that Ethiopia failed to make its domestic law compatible with the provisions and principles of the Convention on the Rights of the child, that the process of drafting and adopting new legislation is slow.
With respect to the other activities of the legislatures, including when they perform nonlegislative functions, the High Court of South Africa has the following to say:
The National Assembly is subject to the supremacy of the Constitution
The National Assembly is subject to the supremacy of the Constitution. It is an organ of state and therefore it is bound by the Bill of Rights. All its decisions and acts are subject to the Constitution and the Bill of Rights. Parliament can no longer claim supreme power subject to limitations imposed by the Constitution. It is subject in all respects to the provisions of our Constitution… The nature and exercise of parliamentary privilege must be consonant with the Constitution. The exercise of parliamentary privilege, which is clearly a constitutional power, is not immune from judicial review. If a parliamentary privilege is exercised in breach of a constitutional provision, redress may be sought by an aggrieved party from law courts whose primary function is to protect rights of individuals.