Justiciability of Directive Principles of State Policy: The Experience of Ethiopia and Ghana (original) (raw)
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Africa Journal of Comparative Constitutional Law, 2017
Constitutions in Africa are not only a means for constituting and constraining political power, but also a mechanism for enabling societal transformation. Precisely because of this, constitutions in Africa set a framework for transformative constitutionalism. Properly constitutionally placed to play this transformative role but figures less both in constitutional practice and scholarship are principles called Directive Principles of State Policies (DPSPs). Drawing lessons from comparative constitutional law and a close investigation of constitutions in Africa, this article argues that putting DPSPs at the service of constitutionalism advances the experiment of transformative constitutionalism and plays an important potential role in responding to some of the challenges of constitutionalism related to the multi-party political system, the judiciary and substantive justice. DPSPs advance transformative constitutionalism because their substantive contents and procedures of implementation are animated by forward looking transformative ethos. They have the potential to address these challenges as they (1) create minimum standards in the substantive formulation of political party programs and implementation strategies, (2) empower and legitimate the judiciary in the functioning of constitutional democracy; and (3) provide substantive justice to the majority through the implementation of socio-economic rights both in the democratic and judicial processes.
2017
As the review and observation of laws and governmental practices bear testimony, today there remains little about the Ethiopian Constitution as law. This is particularly so for fundamental rights in the Constitution. There are no sanctions for violations as the nature of law requires (added to this is lack of equitable or judicial remedy in Ethiopian human rights law); there is almost no procedure to invoke constitutional rights (CRs) independently of sub-constitutional laws, barring their vindication by constitutional means; and there is almost no independent and impartial constitutional interpretation, the job being left for a political assembly, the House of Federation (HoF), together with its CCI (Council of Constitutional Inquiry), whose agenda are driven solely by short-sighted politics of the executive. Hence, by design or accident, ordinary laws implementing the Constitution have become the only route to enforce CRs. ‘Implementation’ laws are not limited to authorized enactments and abstract clauses. Proclaiming constitutional implementation as their priority, these laws extensively regulate mass media, civil society, political association, criminal procedure, and so on. While there is little doubt as to importance of implementation laws, their substance is remarkably designed in part to displace CRs. From few of these laws that happen to implement, many suffer from procedural and enforcement deficiencies making chances of CRs doomed. From legal developments relating to rights restraining the government, I propose three hypotheses regarding the relationship between the Constitution, implementation laws and their enforcement in order to determine if the Constitution is worth celebrating: 1. For ordinary citizens, there are not CRs other than rights in ordinary laws; 2. Ordinary implementation laws routinely provide substantially restrictive clauses flouting the supremacy of the Constitution; 3. If and when implementation laws are constitutionally compatible, their enforcement is hampered by systematic procedural and evidentiary deficiencies; 4. Therefore, in the law’s view, Ethiopian CRs have neither protected citizens nor restrained the government; their worth in legal theory and practice is little.
Beijing Law Review
Inclusion of bill of rights in domestic legal framework and rendering socioeconomic rights justiciable is one of the main mechanisms through which such rights get effective enforcement. The Ethiopian (FDRE) Constitution has recognized socioeconomic rights. It empowered ratified international human rights treaties to serve as standards of interpretation for the bill of rights recognized in the Constitution, many of which treat socioeconomic rights as justiciable. However, the Ethiopian judiciary is reluctant to apply human rights provisions recognized in the Constitution, including socioeconomic rights. It is argued that this is mainly attributed to the confusion existing as to the power of interpreting constitutional norms and their application, and the status of international treaties in domestic arena. The continued but waning debate over justiciability of socioeconomic rights across the globe has also contributed its share, though insignificantly. This article, in an attempt to ascertain justiciability of socioeconomic rights in the Ethiopian legal system, explores the conceptual foundations, and analyzes the normative provision of the FDRE Constitution and judicial perspective regarding justiciability of socioeconomic rights.
Justiciability of Socio-Economic Rights in the Federal Democratic Republic of Ethiopia
2010
Civil and political rights have for years received, both at the international and national levels, much more prominence than socioeconomic rights. Ethiopia is no exception in this regard. It is safe to state that, in the realm of civil and political rights, much has been achieved in Ethiopia. Many people freely exercise and enjoy the fundamental rights and freedoms recognized and protected in the Federal Democratic Republic of Ethiopian (FDRE) Constitution and ratified agreements, most of which are civil and political rights. However, the same cannot be said for socioeconomic rights. This is because in the existence of such situation in the country, there are not many cases of these rights entertained by the judiciary. In other legal systems, problems related to nature of socioeconomic rights, and legitimacy and competency of the judiciary in adjudicating these rights have impeded the judiciary's efforts to enforce these crucial rights meaningfully. In order to explore why the adjudication of socioeconomic rights under the Ethiopian legal system is underdeveloped , this research thus aims at examining and critically analyzing the justiciability of socioeconomic rights in Ethiopia. Hence, the justiciability of socioeconomic rights in the FDRE Constitution and ratified agreements is analyzed from the perspective of the three normative preconditions of justiciability consisting of: claim, setting and remedy elements of justiciability. Accordingly, this research argues that socioeconomic rights can be enforced both directly and indirectly in Ethiopia. While the direct way would be grounded on the provisions of substantive part of the Constitution and ratified treaties, the indirect way would be grounded on the provisions found in the National Policy Principles and Objectives of the Constitution as well as cross-cutting rights. Therefore, Ethiopian courts should adjudicate socioeconomic rights.
An Outline for the Study of Ethiopian Constitutional Law
International Journal of Legal Information, 2015
This outline is prepared based on the 1995 Constitution of the Federal Democratic Republic of Ethiopia (“The 1995 Constitution”). It is important to acknowledge at the outset that the 1995 Constitution cannot be studied in isolation. Like its forerunners, it is not distinctively Ethiopian, save for the customary and religious laws that it recognized. Ethiopian constitutions, both past and present, have been derived, in part, from foreign constitutions including constitutions from western and eastern countries, including Japan. Although its immediate sources can be traced back to the Charter of the Transitional Government of 1991, this 1995 Constitution was built upon the constitutions that preceded it, the laws that have been promulgated since the 1930s, and the religious and customary laws that predated it.