Executive and Organs of State in Civil, Political and Human Rights

Executive and Organs of State in Civil, Political and Human Rights. Article 9 binds all organs of state as well as their officials to observe the Bill of Rights. The executive, which normally refers to those political appointees who collectively head the government, whether it is at the federal or regional level, is also bound to respect and enforce the Bill of Rights (art.13).

However, it has been complained various times that the Executive fails to fulfill its responsibility in this matter. Concern has been put forward by the Committee on the Rights of the Child that some customary practices, which are prejudicial to children’s rights may still be applied instead of modern domestic legal provisions.

On the other hand, in addition of the Press Law, the legislature promulgated a Broadcast Proclamation in 1999 providing for a broadcasting authority to review applications for private radio and television licenses. However, the authority is still not functional as of November 2002. Furthermore, in July 2000, the outgoing Parliament unanimously approved the proclamations establishing the Ethiopian Human Rights Commission and the Office of the Ombudsman, days before the end of its five-year tenure. However, both institutions are not yet functional as of November 2002. Though lack of available resources and expertise are commonly used as excuses, it has been witnessed that the resources and expertise have been made available to undertakings that have the backing of the Government, such as the amendment of the Anti-Corruption legislation and the establishment of the Commission on Ethics and Anti-Corruption.

In the United States, this method is known as the political question doctrine

On the other hand, in relation to other activities of the Executive, some jurisdictions, methods have specifically been developed to exclude the conduct of the executive from judicial scrutiny for consistency with the Bill of Rights. For instance, in the United States, this method is known as the political question doctrine. The effect of labeling an issue ‘a political question’ is to limit the court’s power to review the conduct of the executive, in the assumption that courts are wrongly placed to decide the matter.

However, even in jurisdictions where such methods are not specifically developed, courts are likely to show considerable deference to executive choices of a
political nature. However, in principle and pursuant to art.9, policy developed by the Cabinet under the executive powers should not be inconsistent with the Bill of Rights. It can further be argued that an individual has the right for redress where a failure to implement legislation or to execute a law amounts to a violation of his or her rights. In such circumstances, there is no reason why a court should not order the executive to enforce the Bill of Rights.

The Judiciary

The judiciary is similarly bound by the Supremacy of the Constitution and thus the Bill of Rights. Some provisions of the Bill of Rights, such as art.19 (3), which provide that on appearing before a court, arrested persons have the right to be given prompt and specific explanation of the reasons for their arrest, are indeed specifically directed at the conduct of the judiciary.

Though the courts show signs of independence, the judiciary is weak and overburdened. Contrary to the constitutional provisions, lengthy pretrial detention is
common, closed proceedings occur and at times, detainees are allowed little or no contact with their legal counsel. Often these lengthy detentions are due to severe shortage and limited training of judges, prosecutors and attorneys in many regions. Serious financial constraints further add up to the problem.

It may further be argued that since the judiciary is bound to enforce the provisions in the Bill of Rights, private conducts and acts that conflict with the Bill of Rights will not be uphold in a court of law. However, religious and customary courts that are recognized by the Constitution have led to numerous violations of human rights, especially children and women’s rights, as cases are brought to these courts without their consent despite the constitutional requirement.

Private Actors

The Constitution goes further than the traditional vertical application of the Bill of Rights, in that it binds, in art.9, all citizens, organs of state, political organizations, other associations as well as their officials to ensure observance of the Constitution and to obey it (emphasis added). Article 13, further binds the State to ensure citizens’ rights from unjust interferences from others.

Though all rights in the Bill of Rights might not be applicable to private actors and juristic persons, certain provisions of the Bill of Rights are applicable, taking into account the nature of the rights and the nature of the duty imposed by the right. The State is thus required to take positive steps towards the effective enjoyment of these rights. This includes the obligation to enact legislation and create the framework to prevent violations of rights and enable citizens enjoy their protected rights without interference from others. The application of the Bill of Rights is thus not confined to protecting the individual against abuse of the state’s powers but also against abuses of their rights by other individuals; i.e., horizontal application of the Bill of Rights.

Bill of Rights

Questions concerning the horizontal application of the Bill of Rights cannot be determined a priori and in the abstract. Although this is not explicitly stated, whether a provision of the Bill of Rights applies horizontally can only be determined by reference to the context within which it is sought to be relied upon. For instance, the right to assemble peacefully could be applied horizontally, as the right could be applied where employees assemble in the property of the employer. However, the horizontal application would not be appropriate where individuals assemble in or in front of someone’s private home.

Furthermore, the purpose of a provision is an important consideration in determining whether it is applicable to private conduct or not. For example, the purpose of the right of nationality is, in principle, to prevent the state from denying citizens their nationality and thus the right to the enjoyment of their rights as citizens. It follows from this that this right is not intended to have a horizontal application. See Civil and Political Rights.

The other general consideration that must be taken into account is the nature of the duty imposed. This consideration recognizes that private individuals or juristic persons are primarily driven by a concern for themselves, while the primary concern of the state is the well being of the society as a whole. This consideration is of particular importance when it comes to the imposition of duties, which entail the spending of money. For instance, the application of art.38 (1)(c), which ensures the rights to vote and to be elected by universal and equal suffrage and shall be held by secret ballot, may not be extended to private actors. This is because the activities undertaken to guarantee the free expression of the will of the electors are funded from public funds and not from individual own pockets.

In some instances, specific mention is made in the provisions of the Bill of Rights themselves that particular rights may be applied to private conduct or not. For example, art.35 (3), which states that women are entitled to affirmative measures to remedy the inequality and discrimination suffered by women, clearly indicates that such measures should be undertaken by both public and private institutions.

Putting the above arguments into considerations, certain rights such as the rights of arrested, accused, detained and imprisoned persons, rights of nationality, right of access to justice, rights of Nations, Nationality and People may not be directly applicable to private actors. The remaining rights may, depending on the circumstances of particular cases, be directly applicable to private actors, so as to conform their conducts to the Bill of Rights.

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