Recent experiences in South Africa and Ethiopia to accommodate cultural diversity: A regained interest in the right of self-determination

Journal of African Law

Volumn 44, Issue 1, 2000, Pages 17-51

  Henrard, Kristin ^a   Smis, Stefaan ^b  

^a UNIVERSITY OF LEUVEN   (Belgium)

^b VRIJE UNIVERSITEIT BRUSSEL   (Belgium)

Author keywords

[No Author keywords available]

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EID: 27844566205     PISSN: 00218553     EISSN: 14643731     Source Type: Journal    
DOI: 10.1017/S002185530001202X     Document Type: Article

References (342)

1. See e.g. F. Capotorti, “Les développements possibles de la protection internationale des minorités”, (1986) 27 Cahiers de Droit 247–248
2. L. Green, “Internal minorities and their rights”, in W. Kymlicka (ed.), The Rights of Minority Cultures, Oxford, 1995, 261
3. L. B. Sohn, “The rights of minorities”, in L. Henkin (ed.), The International Bill of Rights: The Covenant on Civil and Political Rights, New York, 1981, 271
4. D. Turk, “Le droit des minorités en Europe”, in H. Giordan (ed.), Les minorités en Europe: droits linguistiques et droits de l'homme, Paris, 1992, 457.
5. See e.g. F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.l, (1991), 12. The definition of the concept minority he proposes and which has an excellent reputation is formulated as follows: “[a] group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members-being nationals of the State-possess ethnic, religious or linguistic characteristics different from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, religion or language.”
6. See UN Doc. E/CN.4/Sub.2/384/Rev.l, 96.
7. It is obvious that according to him “the rest of the population” does not necessarily need to be a monolithic bloc. See also A. Adeno, “Individualism, communitarianism and the rights of ethnic minorities”, (1991) 67 Notre Dame Law Review 623
8. D. Murswiek, “The issue of a right of secession-reconsidered”, in C. Tomuschat (ed.), Modern Law of Self Determination, Dordrecht, 1993, 36.
9. See e.g. P. F. Gonidec, “Conflits internes et question nationale en Afrique: le droit á l'autodetermination interne”, (1997) 9 Revue Africain de Droit International et Comparé 551 and the references in the next note.
10. See e.g. N. Canefe, “Sovereignty without nationalism? A critical assessment of minority rights beyond the sovereign nation-state model”, in M. Sellers (ed.), The New World Order. Sovereignty, Human Rights and the Self-Determination of Peoples, Oxford, 1991, 108
11. H. Hannum, Autonomy, Sovereignty and Self-Determination, Philadelphia, 1990, 71
12. Sohn, Autonomy, Sovereignty and Self-Determination, n. 3, 270
13. R. Stavenhagen, “Human rights and peoples' rights-the question of minorities”, (1987) Netherlands Journal of Human Rights 21
14. P. Thornberry. “The UN Declaration on the Rights of Persons Belonging to National or Ethnic, Religious or Linguistic Minorities: background, analysis, observations and an update”, in A. Phillips and A. Rosas (eds.), Universal Minority Rights, Abo, 1995, 18
15. J. M. Woehrling, “Institutions européennes et droits linguistiques des minorités”, in H. Giordan (ed.), Les minorités en Europe: droits linguistiques et droits de l'homme, Paris, 1992, 509.
16. See however Stavenhagen, Les minorités en Europe: droits linguistiques et droits de l'homme, n. 6, 22 who states that the right to self-determination was initially also granted to “nations”.
17. Musgrave distinguishes for example between the “decolonization” definition of “people”, the “representative government” definition and the “ethnic” definition. We discuss the definition mainly from the angle of the relationship between “people” and “minority” and although similar issues are mentioned, we do not follow such a classification for our thesis. See T. D. Musgrave, Self-Determination and National Minorities, Oxford, 1997, 149–167.
18. F. Harhoff, “Self-determination, ethics and law”, in G. Alfredsson and P. Macalister-Smith (eds.), The Living Law of Nations: Essays on Refugees, Minorities, Indigenous Peoples and the Human Rights of Other Vulnerable Groups In Memory of Atle Grahl-Madsen, Kehl, 1996, 174
19. Stavenhagen, The Living Law of Nations: Essays on Refugees, Minorities, Indigenous Peoples and the Human Rights of Other Vulnerable Groups In Memory of Atle Grahl-Madsen, n. 6, 23.
20. M. Pomcrance, Self-Determination in Law and Practice. The New Doctrine at the United Nations, The Hague, 1982, 14.
21. I. Brownlie, “The rights of peoples in modern international law”, in J. Crawford (ed.). The Rights of Peoples in Modern International Law, Oxford, 1988, 5.
22. Harhoff argues in this respect that “peoples is not a legal but rather a normative concept the definition of which relies mainly on ethnic, local and subjective parameters.” See Harhoff, The Rights of Peoples in Modern International Law, n. 9, 174.
23. See e.g. the analysis in D. Turk, “Le droit des minorites en Europe”, in H. Giordan (ed.). Les minorités en Europe. Droits lingitistiques et droits de l'homme, Paris, 1992, 461–462.
24. Nowak underlines in his evaluation of article 1 ICCPR that it is highly contested which ethnic or national groups would qualify as peoples. See M. Nowak, UN Covenant on Civil and Political Rights CCPR Commentary, Kehl. 1993, 22. See also below for further analysis and references.
25. A. Cristescu. The Right to Self-Determination, Historical and Current Developments on the Basis of UN Instruments, UN Doc, E/CN.4/Sub.2/404/Rev.1., 1983, 39.
26. See also D. McGoldrick. The Human Rights Committee: Its Role in the Development of the ICCPR, Oxford, 1991, 15.
27. McGoldrick, The Human Rights Committee: Its Role in the Development of the ICCPR, n. 13, 15.
28. Compare with A. Cassese, “The self-determination of peoples”, in L. Henkin (ed.), The International Bill of Rights, New York, 1982, 95. Cassese argues that the travaux preparatoires of article 1 ICCPR would allow to conclude that “peoples” also include nations and ethnic groups. He adds however the double condition that an ethnic group would only have a right to self-determination if it assumes a dimension and importance comparable to the other components of the state and this in fact as well as in constitutional status. This, however, seems to jeopardize once more the possible recognition of a right of minorities to a (certain form of) self-determination since the constitutional status of a group is entirely dependent on the state of residence and its policy in this regard.
29. McGoldrick, The International Bill of Rights. n. 13. 250.
30. For a judicial opinion acknowledging the possible overlap between minorities and peoples, sec Supreme Court of Canada, In the Matter of s. 53 of the Supreme Court Act, RSC 1985, C. S-26
31. and in the matter of a reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in Order in Council PC 1996–1997, dated 30 September, 1996, para. 124.
32. A. Margalit and J. Raz, “National self-determination”, in W. Kymlicka (ed.), The Rights of Minority Cultures, Oxford, 1995, 81–85.
33. See also R. McCorquodale, “Self-determination: A human rights approach”, (1994) 43 International and Comparative Law Quarterly 866–867. The latter author also expresses the preference not to limit the concept people to a purely territorial concept but to fill it in rather cultural-ethnically. The factors which he considers determining to decide whether or not a certain group is a people with a right to self-determination include the following: a common historical tradition, racial or ethnic identity, cultural homogeneity, linguistic unity, religious or ideological affinity, territorial concentration, a common economic life and finally a certain number of members.
34. P. Thornberry, “Self-determination, minorities, human rights: a review of international instruments”. (1989) 38 International and Comparative Law Quarterly 882–883
35. P. Thornberry, “The democratic or internal aspect of self-determination with some remarks on federalism”, in C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, 1993, 113.
36. Sellers, Modern Law of Self-Determination, n. 6, 6.
37. See A. Pellet, “The opinions of the Badinter Arbitration Committee: a second breath for the self-determination of peoples”, (1992) 3 European Journal of International Law 178.
38. N. Rouland et al., Droit des minorités et des peuples autochtones, Paris, 1996, 208. Musgrave states regarding Opinion No. 2 of the Badinter Commission of 11 January, 1992 regarding the Serbian minorities of Croatia and Bosnia-Herzegovina that “although the Badinter Arbitration Commission equated the concept of minorities to that of peoples, this did not mean that those groups thereby obtained the collective right freely to determine their own political status.
39. They were certainly not entitled to determine their own political status through secession, which was precisely their political goal, the right of self-determination for such peoples was instead reduced by the Commission to little more than the protection already accorded to minorities by international law.” See Musgrave, Droit des minorités et des peuples autochtones, n. 8, 170–171.
40. See e.g on external and internal self-determination, A. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Cambridge, 1995, 71–140
41. Cassese, A Legal Reappraisal, n. 14, 96–98
42. C. Gusy, “Von der Selbstbestimmung durch den Staat zur Selbstbestimmung im Staat”, (1992) 30 Archiv des Volkerrechts 397–409
43. Pomerance, Archiv des Volkerrechts, n. 10, 37
44. S. Oeter, “Selbstbestimmung im Wandel. Uberlegungen zur Debatte um Selbstbestimmung, Sezessionsrecht und ivorzeitigeî Anerkennung”, (1992) 52 Zeitschrift für ausläindisches öffentliches Recht und Volkerrecht 741–780
45. H. Moris, “Self-determination: an affirmative right or mere rhetoric”, (1997) 4 USA Journal of International and Comparative Law 201–220
46. A. Rosas, “Internal self-determination”, in C. Tomuschat (ed.), Modern Law of Self-Determination, Dordrecht, 1993, 232–252
47. J. Salmon, “Internal aspects of the right to self-determination: towards a democratic legitimacy principle?”, in C. Tomuschat (ed.), Modern Law of Self Determination, Dordrecht, 1993, 253–282
48. Thornberry, “The democratic or internal aspect of self-determination with some remarks on federalism”, Modern Law of Self Determination, n. 18, 101–138
49. H. Hannum, “Rethinking self-determination”, (1993) 34 Virginia Journal of International Law 1–69.
50. E. I. Daes, “Native peoples rights”, (1986) 27 Les Cahiers de Droit 126.
51. Thornberry, “The democratic or internal aspect of self-determination with some remarks on federalism”, Les Cahiers de Droit, n. 18, 101.
52. Pomerance, Les Cahiers de Droit, n. 10, 24.
53. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Les Cahiers de Droit, n. 22, 98–100.
54. See also Rosas, Les Cahiers de Droit, n. 22, 79.
55. McCorquodale, Les Cahiers de Droit, n. 17, 863.
56. Daes, Les Cahiers de Droit, n. 23, 126.
57. See also Rosas, Les Cahiers de Droit, n. 22, 80.
58. Pomerance, Les Cahiers de Droit, n. 18, 37.
59. Thornberry, “Self-determination, minorities, human rights: A review of international instruments”, Les Cahiers de Droit, n. 18, 101.
60. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Les Cahiers de Droit, n. 22, 97–98.
61. See e.g. P. R. Baehr, “Politieke en Politicologische Dimensies van een Mensenrecht: het Recht op Zelfbeschikking”, in M. Kuitenbrouwer and M. Leenders (eds.), Geschiedenis van de and Mensenrechten. Bouwstenm voor een Interdisaplinaire Benadering, Hilversum, 1996, 84.
62. See e.g. Adeno, Geschiedenis van de and Mensenrechten. Bouwstenm voor een Interdisaplinaire Benadering, n. 4, 624
63. Murswiek, Geschiedenis van de and Mensenrechten. Bouwstenm voor een Interdisaplinaire Benadering, n. 4, 36
64. A. Heraclides. The Self-Determination of Minorities in International Law and Politics, London, 1991, 26
65. M. N. Shaw, International Law, Cambridge, 1991, 276–277. See also Supreme Court of Canada, in the matter of a reference by the Governor in Council concerning certain questions relating to the secession of Quebec from Canada, as set out in order in council PC 1996–1997, dated 30 September, 1996, para. 113.
66. See e.g. A. Buchanan, “The morality of secession”, in W. Kymlicka (ed.), The Rights of Minority Cultures, Oxford, 1995, 350–374
67. Heraclides, The Rights of Minority Cultures, n. 33, 29–30
68. Murswiek, The Rights of Minority Cultures, n. 4, 22, 25–27, and 34.
69. Contra Heraclides, The Rights of Minority Cultures, n. 33, 21–30.
70. Buchanan, The Rights of Minority Cultures, n. 34, 350–374.
71. Adeno applies in his discussion of Buchanan's theory on secession this explicitly to the claims of secession by ethnic minorities. According to the former such claims would be mostly related to the ground of discriminatory dispensation but that ground would not give these minorities ipso facto a right to secede. See Adeno, The Rights of Minority Cultures, n. 4, 625.
72. Buchanan, The Rights of Minority Cultures, n. 34, 353, 358–359, 362, 365, and 369.
73. The Rights of Minority Cultures, at 373.
74. See also M. Galenkamp, “De Grenzen van Nationale Zelfbeschikking”, in N. Sybesma-Knol and J. Van Bellingen (eds.), Naar een Nieuwe Interpretatie van het Recht op Zelfbeschikking?, Brussel, 1995, 93.
75. Murswiek, Naar een Nieuwe Interpretatie van het Recht op Zelfbeschikking?, n. 4, 27.
76. Regarding the right to self-determination the restriction imposed by the principle of territorial integrity is explicitly mentioned inter alia in UX General Assembly Resolution 1514 (XV) (14 Dec, 1960), para. 6
77. Declaration on the Granting of Independence to Colonial Countries and Peoples; UX General Assembly Resolution 2625 (XXV), (24 Oct., 1970), Annex: Declaration on Principles of International Law concerning Friendly Relations and Co-operation among States in accordance with the Charter of the United Nations.
78. Several documents concerning minority rights also contain provisions underlining that the rights as granted would not go counter the principle of territorial integrity of States, see UX Human Rights Committee, General Comment on article 27, para. 3.2
79. UN Declaration on Minorities, article 8, para. 4
80. CSCE Copenhagen Document, para. 37
81. European Charter on Regional and Minority Languages, article 5
82. Framework Convention for the Protection of National Minorities, article 21.
83. See e.g. Murswiek, Framework Convention for the Protection of National Minorities, n. 4, 37.
84. A. Eide, “In search of constructive alternatives to secession”, in C. Tomuschat (ed.), Modem Law of Self-Determination, Dordrecht, 1993, 161–174. In the part of the article indicated, Eide discusses several forms of internal self-determination which are also mentioned here. He makes an important distinction between “pluralism in togetherness” and “pluralism by territorial sub-division” and consequently discusses personal as well as territorial techniques of minority protection.
85. Murswiek, Modem Law of Self-Determination, n. 4, 38.
86. H. Hannum, “The limits of sovereignty and majority rule: Minorities, indigenous peoples and the right to autonomy”, in E. Lutz et al. (eds.), New Directions in Human Rights, Philadelphia, 1989, 22.
87. Hannum for example argues that already during the League of Nations era following World War I President Wilson and others would have acknowledged and favoured an internal dimension of the right to self-determination, namely a dimension related to democracy. See Hannum, “The limits of sovereignty and majority rule”, New Directions in Human Rights, n. 45, 8.
88. See also Musgrave who distinguishes (inter alia) between the “decolonization” definition of “people”, the “representative government” definition and the “ethnic” definition. See Musgrave, New Directions in Human Rights, n. 8, 149–154.
89. See e.g. T. R. H. Davenport, South Africa, A Modern History, Toronto, 1991, 519.
90. See also N. Worden, The Making of Modern South Africa. Conquest, Segregation and Apartheid, Oxford, 1994, 87, who underlines that the NP had brought voters together by means of the apartheid slogan.
91. Regarding apartheid, Davenport argues in any event that “[t]he new government also showed from the start that it intended to check and eliminate the trends towards inter-racial integration. One can distinguish here between legislation to establish distinct biological categories among the population groups and legislation to prevent their residential mixing when the biological sorting had been done.” See Davenport, Conquest, Segregation and Apartheid, n. 48, 328.
92. See interview with Johny De Langc, constitutional negotiator for the ANC, Cape Town, 12 April, 1996.
93. See also Davenport, Conquest, Segregation and Apartheid, n. 48, 518
94. RGN, Die Suid-Afrikaanse Samelewing Werklikhede en Toekomstmoontlikhede, Pretoria, 1985, 16–17.
95. See also Worden, Die Suid-Afrikaanse Samelewing Werklikhede en Toekomstmoontlikhede, n. 48, 95
96. RGN, Die Suid-Afrikaanse Samelewing Werklikhede en Toekomstmoontlikhede, n. 50, 18 and 59.
97. See also Bennett who underlines that “exponents of apartheid were responsible for stressing and even creating cultural differences and then for systematically exploiting them in order to restructure the social and political order.” See T. W. Bennett, Human Rights and African Customary Law under the South African Constitution, Cape Town, 1995, 7.
98. Regarding the “formation” of a Coloured identity see I. Goldin, “Coloured identity and coloured politics in the Western Cape region of South Africa”, in L. Vail, The Creation of Tribalism in Southern Africa, Berkeley, 1989, 241: “[f]or over a hundred years, attempts have been made to foster and manipulate Coloured identity and to engineer socially a Coloured political alliance with the ruling white parties. A distinct Coloured identity … is the outcome of a history of “divide and rule” tactics.” (our emphasis)
99. See e.g. B. Manby, “South Africa: minority conflict and the legacy of minority rule”, (1995) 19 Fletcher Forum of World Affairs 27
100. H. Kotze, Culture, Ethnicity and Religion: South African Perceptions of Social Identity, Occasional Papers, Johannesburg, April 1997, 2
101. D. Van Wyk, “Introduction to the South African Constitution”, in J. Van Wyk et al. (eds.), Rights and Constitutionalism. The New South African Legal Order, Kenwyn, 1994, 133.
102. See e.g. B. Oomen, “Group Rights in post-Apartheid South Africa: the Case of the Traditional Leaders”, Paper Presented at the IUAES Conference (26 July-1 August, 1998), 16–18.
103. See e.g. T. Coetzee, Die Verrekening van die Etnisiteitsfaktor in Grondwetskrywing in Suid-Afrika-'N Politikologiese Analise, Bloemfontein, 1995, 90
104. Worden, Die Verrekening van die Etnisiteitsfaktor in Grondwetskrywing in Suid-Afrika-'N Politikologiese Analise, n. 48, 95
105. P. Harries, “Exclusion, classification and internal colonization; the emergence of ethnicity among the Tsonga-speakers of South Africa”, in L. Vail (ed.), The Creation of Tribalism in Southern Africa, Berkeley, 1989, 110
106. RGN, The Creation of Tribalism in Southern Africa, n. 50, 147.
107. RGN, The Creation of Tribalism in Southern Africa, n. 50, 59.
108. See also Manby, The Creation of Tribalism in Southern Africa, n. 53, 28: “[e]very South African was compulsorily registered at birth as a member of one race, on which depended all future rights and entitlements.”
109. For a discussion of the strategy of forced removals used to realize this separate development and its intrinsic relation to apartheid, see K. Henrard, “The internally displaced in South Africa. The strategy of forced removals and apartheid”, (1996) 32 Jura Falconis 491–555. The distinctive areas were first called Bantustans, then Homelands and finally even National States.
110. See also Harries, Jura Falconis, n. 55, 105: “ethnic bitterness reached a peak as politically arbitrary borders such as roads, railways and farm boundaries were defined in order to separate the different ‘homelands’. This immediately created disadvantaged ethnic minorities on both sides of the border.”
111. See also M. Van Diepen, “Introduction”, in M. Van Diepen (ed.), The National Question in South Africa, London, 1988, 8
112. Van Wyk, The National Question in South Africa, n. 53, 133.
113. The Bantu Homelands Constitution Act of 1971 can be considered “enabling legislation to empower the State President to confer self-government on any of the … Territorial Authorities by proclamation.” See Davenport, The National Question in South Africa, n. 48, 374.
114. Manby, The National Question in South Africa, n. 52, 29.
115. For a balanced approach to issues of language and ethnicity, see X, Report of the Commission on the Demarcation/Delimitation of SPRs, Pretoria, 1993, 4 and 13. The Commission was asked to make up a report on the demarcation of the territorial sub-units of South Africa (states, provinces or regions- thus SPRs). The Commission was instructed to take into account ten criteria among which were demographic considerations and cultural and language realities.
116. See Report of the Commission on the Demarcation/Delimitation of SPRs, 4–5. The Commission makes the following remark on the basis of comparative research regarding language criteria: “it seems that regions should not be “gerrymandered” at the cost of geographical and economic cohesion merely for the sake of language homogeneity. The reorganization of homogeneous language and cultural regions may provide the opportunity for the exploitation of ethnic sentiments, claims and counter claims and constant new majorities and new minorities.
117. On the other hand, regional boundaries should not cut across the spontaneously formed areas where particular language communities live.” See Report of the Commission on the Demarcation/Delimitation of SPRs, 13.
118. Worden refers in this respect to a series of developments between 1979 and 1984 which collectively formulated the policy known as “total strategy” and he mentions the changes regarding segregation in education, the removal of many petty apartheid (as opposed to grand apartheid) restrictions like segregation of public amenities, and also the 1983 Constitution. See Wordesn, Report of the Commission on the Demarcation/Delimitation of SPRs, n. 48, 122–124.
119. Manby stresses regarding Grand Apartheid that “[i]n practice, the homeland system was impossible to implement fully. The designation of ethnic groups and the areas for their occupation was often arbitrary and illogical; thousands were allocated to homelands with which they had no real connection, although hundreds of thousands of black South Africans were forcibly uprooted from their homes and deported to the barren rural areas, millions remained legally or illegally resident in white South Africa, despite the constant threat of deportation. After more than three million people had been internally displaced, the government conceded that black South Africans would remain a reality. Mass forced removals were ceased by the mid-1980s …” See Manby, Report of the Commission on the Demarcation/Delimitation of SPRs, n. 52, 29.
120. See e.g. Davenport, Report of the Commission on the Demarcation/Delimitation of SPRs, n. 48, 520.
121. Van Wyk, Report of the Commission on the Demarcation/Delimitation of SPRs, n. 53, 135.
122. See e.g. W. De Klerk, “The process of political negotiation: 1990–1993”, in B. De Villiers (ed.). Birth of a Constitution, Kenwyn, 1994, 1 and 4–6
123. Manby, Birth of a Constitution, n. 52, 35
124. Van Wyk, Birth of a Constitution, n. 53, 137–138.
125. See e.g. Corder, “Towards a South African Constitution”, (1994) 57 Modern Law Review 500
126. Van Wyk, Modern Law Review, n. 53, 143.
127. Section 71 IC. See also M. Lobban, “Un accord négocié le processus constitutionnel en Afrique du Sud depuis 1991”, (1997) 107 Revue de Droit Public 81
128. Van Wyk, Revue de Droit Public, n. 53, 159–160.
129. See above notes 53–58 and Oomen, Revue de Droit Public, n. 54, 1.
130. See preamble of both the Interim and the Final Constitution. See also J. Kentridge, “Equality”, in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, loose leaf (including second revision), Kenwyn, 14.1
131. Van Wyk, Constitutional Law of South Africa, loose leaf (including second revision), n. 53, 158.
132. Kentridge, Constitutional Law of South Africa, loose leaf (including second revision), n. 74, 14.2–14.3.
133. See also N. Smith, “Affirmative action under the new Constitution”, (1995) 11 South African Journal of Human Rights 94.
134. I. Currie, “Minority rights: culture, education and language”, in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, loose leaf (including second revision), Kenwyn, 35.2.
135. See also G. Devenish, “Minority rights and cultural pluralism-the protection of language and culture in the 1996 Constitution”, to be published in a book on the 1996 Bill of Rights, on file with the author, 1: “[t]he acute problem of accommodating and protecting ethnic, religious and linguistic minorities in a democratic body politic operating according to the philosophy and practice of constitutionalism and a justiciable bill of rights eclipsed all other issues both in relation to the Interim and 1996 Constitutions.”
136. Currie, “Minority rights and cultural pluralism-the protection of language and culture in the 1996 Constitution”, n. 76, 35.2
137. Devenish, “Minority rights and cultural pluralism-the protection of language and culture in the 1996 Constitution”, n. 76, 1.
138. For an indication that already during the negotiations around the exact formulation of the affirmative action clause, its sensitive nature as to appropriate implementation modes was apparent: “[t]he real bone of contention among the negotiation parties proved to be the subclause permitting measures designed to achieve affirmative action. Some libertarians insisted that these measures explicitly referred to as ‘reasonable’ measures. In the end, however, the Negotiating Council concluded that the requirement of reasonableness is inherent in the formulation of the proposed clause itself since it requires affirmative action measures to be ‘designed’ to achieve the adequate protection and advancement of persons or groups or categories of persons disadvantaged by discrimination in order to enable their full and equal enjoyment of all rights and freedoms.” It was acknowledged that the word “designed” required a rational scheme which would have to advance a particular purpose, namely that of “full and equal enjoyment of all rights and freedoms.” See also N. Smith, “Affirmative action under the new Constitution”, (1995) 17 South African Journal of Human Rights 92.
139. Currie, South African Journal of Human Rights, n. 76, 35.10
140. R. R. Kriel, “Education”, in M. Chaskalson et al. (eds.) Constitutional Law of South Africa, loose leaf (including second revision), Kenwyn, 38.6
141. Lobban, Constitutional Law of South Africa, loose leaf (including second revision), n. 75, 107.
142. I. Currie, “Official languages”, in M. Chaskalson et al. (eds.), Constitutional Law of South Africa, loose leaf (including second revision), Kenwyn, 37.7.
143. African National Congress, A Bill of Rights for a New South Africa, Preliminary Revised Version, May 1992, Article 5.
144. See e.g. X, “Constitutional Talk Number 1: 13–26 January 1995”, , 3.
145. Manby, “Constitutional Talk Number 1: 13–26 January 1995”, n. 52, 28.
146. Regarding the uncertainty surrounding customary law, see e.g. T. W. Bennett, “The equality clause and customary law”, (1994) 10 South African Journal of Human Rights 123
147. J. C. Bekker, “How compatible is African customary law with human rights? Some preliminary observations”, (1994) Tydskrif vir Hedendaagse Romeins Hollandse Reg 441.
148. See also H. A. Strydom, “Minority rights issues in post-apartheid South Africa”, (1997) 19 Loyola of Los Angeles International and Comparative Law Journal 897, who underscores the uncertain future for the institution of traditional leadership and for the Volkstaat Council and the proponents of the idea of a Volkstaat.
149. Manby, Loyola of Los Angeles International and Comparative Law Journal, n. 52, 36.
150. Currie, Loyola of Los Angeles International and Comparative Law Journal, n. 76,. 35.46.
151. See also H. A. Strydom, “Self-determination and the South African Interim Constitution”, (1993–1994) South African Yearbook of International Law 48.
152. Currie, South African Yearbook of International Law, n. 76, 35.46.
153. See also S. Ellman, “Federalism awry: The structure of government in the Kwazulu/Natal Constitution”, (1993) 9 South African Journal of Human Rights 165.
154. Currie, South African Journal of Human Rights, n. 76, 35.46.
155. See also Oomen, South African Journal of Human Rights, n. 54, 6.
156. Corder distinguishes the approach of both sides as he puts forward that “[t]he Inkatha Freedom Party clearly gambled on achieving more of its objectives by remaining outside the structures of the MPNP and adopting a threatening stance, while its fellow organisations on the white right openly and repeatedly threatened civil war if their key demand of a white (‘Afrikaner’) state was not conceded.” See Corder, South African Journal of Human Rights, n. 71, 503.
157. Corder, South African Journal of Human Rights, n. 71, 503
158. Currie, South African Journal of Human Rights, n. 76, 35.46.
159. See also Currie, South African Journal of Human Rights, n. 76, 35.46.
160. Technical Committee on Constitutional Issues. “Fourth Supplementary Report on Constitutional Principles”. 26 July, 1993, 7.
161. See also K. Hailbronner and C. Kreuzer, Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, Johannesburg, 1995, 8: “minority rights for the white population and/or other groups may be implemented according to principles XI, XII and XIV meaning that even if the creation of a sovereign Afrikaner State with its own army, police, taxing power and nationality law is not possible, ethnic groups could reunite in smaller territorial units if the people living within its territory consent.” (our emphasis)
162. See e.g. Corder, Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, n. 71, 504
163. Oomen, Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, n. 54, 6.
164. Corder, Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, n. 71, 504
165. De Klerk, Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, n. 70, 9.
166. See e.g. Corder, Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, n. 71, 504
167. Van Wyk, Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, n. 53, 157–158, 165–166.
168. See also Corder, Implementing Federalism in the Final Constitution of the Republic of South Africa, occasional papers, n. 71, 504–505.
169. See also Accord on Afrikaner Self-Determination between the Freedom Front, the African National Congress and the South African Government/National Party (23 Apr., 1994), at 12, where it sets out “Guidelines for the deliberations of the Volkstaat Council” and where it distinguishes different modes of self-determination including on a provincial and on a local community basis.
170. Constitutional Principle XXXIV (1), Schedule 4, IC (our emphasis).
171. See IC, Chapter 11 A.
172. IC, S. 184 B(l).
173. See e.g. Strydom, IC, n. 84, 897
174. Van Wyk, IC, n. 53, 165, and 168.
175. See also Accord on Afrikaner Sell-Determination between the Freedom Front, the Africaner National Congress and the South African Government/National Party (23 April, 1994), 5.
176. SAIRR, “Race Relations Survey 1994–1995”, Johannesburg, South African Institute for Race Relations, (1995), 339.
177. “Race Relations Survey 1994–1995”, 353.
178. Currie, “Race Relations Survey 1994–1995”, n. 76, 35.2
179. Devenish, “Race Relations Survey 1994–1995”, n. 76, 1.
180. X, “Constitutional Talk Number 3: 10 February, 1995”, , 1.
181. X, “Constitutional Talk Number 1: 13 February, 1995”. , 6–7
182. X, “Constitutional Talk Number 8: 29 June, 1995”, , 10.
183. See also Currie, “Constitutional Talk Number 8: 29 June, 1995”, n. 76, 35.48: “[agreement on the interpretation and implementation of CP XXXIV proved elusive during the Constitutional Assembly process.”
184. X, “Constitutional Talk Number 13: 26 Januarv, 1995”, , 6–7.
185. Currie, “Constitutional Talk Number 13: 26 Januarv, 1995”, n. 76, 35.48.
186. See also X, “Constitutional Talk Number 8: 29 June, 1995”, , 9–10.
187. X, “Constitutional Talk Number 3: 22 April, 1996”, , 1.
188. See also Currie, “Constitutional Talk Number 3: 22 April, 1996”, n. 76, 35.8
189. Strydom, “Constitutional Talk Number 3: 22 April, 1996”, n. 84, 900–901.
190. It took a long time before the ANC decided how it envisaged that Commission and consequently the parliamentary debates on its effectuation only started August 4, 1998, see “Speech Delivered by the Minister for Provincial Affairs and Constitutional Development, Minister Valli Moosa, on the Occasion of the Launch of the Debate on the Culture, Religion, Language and Nation Building, National Assembly, 4 August, 1998, .
191. X, “Constitutional Talk Number 3”: 22 April, 1996, , 1.
192. Currie, “Constitutional Talk Number 3”, n. 76, 35.18.
193. Currie, “Constitutional Talk Number 3”, n. 76, 35.23
194. Devenish, “Constitutional Talk Number 3”, n. 76, 15
195. Strydom, “Constitutional Talk Number 3”, n. 84, 899–900.
196. Currie, “Constitutional Talk Number 3”, n. 76, 35.18.
197. “Constitutional Talk Number 3”, 35.48.
198. FC, Section 235 (our emphasis).
199. Currie, FC, n. 76, 35.48.
200. See also N. Alexander, “Linguistic Communities of South Africa: Some Questions and Attempts at Answers”, presentation at IDASA Conference on the “Commission for the Promotion and Protection of the Rights of Cultural, Religious and Linguistic Communities”, September 1996, unpublished manuscript, on file with the author): “[t]he amphibolous language ofs 235 of the new constitution leaves the door ajar for a politics of cultural-national autonomy, and conceivably even for a politics of territorial self-determination …”.
201. Strydom, “Linguistic Communities of South Africa: Some Questions and Attempts at Answers”, n. 84, 907.
202. FC, Schedule 6 “Transitional Arrangements”, s. 20(5).
203. See e.g. Sacks who argues regarding self-determination that “[w]hile still referred to in section 235 of the final constitution, this right has been transmuted into section 185 which provides for the establishment of a Commission for the promotion and protection of cultural, linguistic and religious communities.” See V. Sacks, “Multiculturalism, constitutionalism and the South African Constitution”, (winter 1997) Public Law 679.
204. Sacks, Public Law, n. 129, 679.
205. See also Devenish, Public Law, n. 76, 26.
206. See e.g. H. Coveliers and M. Veys, “De Zuid-Afrikaanse Grondwet van 1996”, (1997) Tijdschrift voor Bestuurswetenschappen en Publiekrecht 238–239.
207. See e.g. Coetzee, Tijdschrift voor Bestuurswetenschappen en Publiekrecht, n. 58, 73–74
208. Sacks, Tijdschrift voor Bestuurswetenschappen en Publiekrecht, n. 129, 676, n. 17.
209. See also A. Sachs, Advancing Human Rights in South Africa, Cape Town, 1992, 44–45, who argues for the need of checks and balances contributing to the endurance of minority protection, including the political participation of the population groups concerned.
210. FC, Sections 46(1)(d) and 105(1)(d) respectively.
211. FC, Section 80(2) requiring at least one-third of the members of the National Assembly to support such an application and section 122(2) FC requiring at least 20 per cent of the members of the legislature concerned to support the application.
212. X, “Constitutional Talk Number 5: 17 October, 1996”, , 2.
213. Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Constitution, 1996, CCT 23/96, 6 September, 1996
214. See X, “Constitutional Talk Number 5: 17 October, 1996”. , 1–6.
215. Ex Parte Chairperson of the Constitutional Assembly: In re Certification of the Amended Text of the Constitution of the Republic of South Africa, 1996. CCT 37/96, 4 December, 1996
216. Proclamation R 6 1997 by the President, “Commencement: Constitution of the Republic of South Africa, 1996 (Act No. 108 of 1996).”
217. The Freedom Front describes itself as “a party for Afrikaners which believe in self-determination and a Volkstaat. The aim of the party is to achieve freedom for the Afrikaner within their own state, while also taking care of the interest of those residing outside its borders.” See X, “Who and what is the Freedom Front”, . 1. It should also be mentioned that the party distinguishes a short, medium and long term strategy. Short term they intend to establish Afrikaner Councils country-wide, to identify preferential settlement areas for Afrikaners and to draft the legislation regarding the implementation of s. 185 FC.
218. On the medium term they strive for regional cultural autonomy and the development of the volkstaat. Finally and on the long term, the volkstaat should be formed while the necessary co-operation with the Afrikaner Councils outside the volkstaat should be developed and maintained. See X, “Short, Medium and Long Term Strategy”, 1–2.
219. See e.g. First Commentary of the Freedom Front on: Afrikaner Self-Determination and the Way Forward, a Facilitator's Proposal of 6 February, 1996, 9 February, 1996
220. Bi-Lateral Negotiations between the ANC and the Freedom Front-February, 1996, 22 February, 1996
221. A Freedom Front's View on The Possible Contents of a. New Accord between the Freedom Front and the ANC, 22 February’, 1996.
222. See e.g. “Afrikaner Volkstaat. Wagons rumbling through the Karoo”, . 17 July, 1998, 1–3.
223. R. Doom, “Destabilisering in de Hoorn”, in R. Doom (ed.), Stabiliteit, Ontwikkeling & Democratic. Conflictpreventie en Beheersing in het Zuiden, Brussels, 1994, 90–91.
224. See M. Ali, “A historical necessity: The case for federalism”, (Sept. 1994) Ethioscope 23.
225. Doom, Ethioscope, n. 144, 89
226. J. Markakis, “Ethnic conflict and the State in the Horn of Africa”, in K. Fukui and J. Markakis (eds.), Ethnicity & Conflict in the Horn of Africa, London, 1994, 221 pointing out that “[m]any of the territories and peoples incorporated into the state domain, especially the pastorialist lowlands, were never fully integrated, due to the resistance of the population. It was not until the late 1950s that the imperial regime in Ethiopia attempted to make its presence felt in the lowland periphery of the state, where it immediately encountered violent resistance, and the rebellions of the 1960s in the Ogaden, Bale and southern Sidamo provinces were the result.”
227. Doom, Ethnicity & Conflict in the Horn of Africa, n. 144, 93.
228. M. Haile, “Legality of secessions: the case of Eritrea”, (1994) 8 Emory International Law Review 482–483.
229. Encyclopaedia Britannica, 1964, 786.
230. Peace Treaty with Italy, 49 U.N.T.S. 19.
231. R. Sureda, The Evolution of the Right of Self-Determination. A Study of United Nations Practice, Leiden, 1973, 133
232. Cassesc, Self Determination of Peoples. A Legal Reappraisal, A Study of United Nations Practice, n. 22, 219.
233. The first Committee of the General Assembly proposed a draft resolution stating that “Eritrea, except for the Western Province, be incorporated into Ethiopia, under terms and conditions set forth below, to include the provision of appropriate guarantees for the protection of minorities and, without prejudice to the sovereignty of Ethiopia, appropriate municipal charters for the cities of Asmara and Massawa.” When the proposal of the first Committee could not be adopted by the General Assembly, because it had ignored the interest of the Eritreans themselves, the General Assembly decided to set up a five-member commission in order to “ascertain more fully the wishes and the best means of promoting the welfare of the inhabitants of Eritrea”. See General Assembly Res. 289-A(IV). It resulted in two memoranda containing three views. While the representatives of Burma and South Africa shared the view that Eritrea should federate with Ethiopia, the Norwegian member considered “complete and immediate reunion” of Eritrea with Ethiopia the most adequate solution. Finally, the representatives of Guatemala and Pakistan believed that Eritrea should become an independent state after being placed under trusteeship of the UN for a maximum period of 10 years.
234. See Report of the United Nations Commission for Eritrea, UN Doc. A/1285 (1950).
235. See also Cassesc, Self Determination of Peoples, A Legal Reappraisal, UN Doc. A/1285, n. 22, 220
236. Sureda, UN Doc. A/1285, n. 151, 136–137. Thereupon the General Assembly decided in its Resolution 390-A(V) that “Eritrea shall constitute an autonomous unit federated with Ethiopia under the sovereignty of the Ethiopian crown.”
237. General Assembly Resolution 390-A(V) (2 Dec, 1950).
238. See also H. Erlich, “The Eritrean autonomy 1952–1962: Its failure and its contribution to further escalation”, in Y. Dinstein (ed.), Models of Autonomy, New Brunswick, 1980, 174.
239. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Models of Autonomy, n. 22. 220
240. Erlich, Models of Autonomy, n. 153, 175.
241. D. Demissie, “Self-determination including secession vs. the territorial integrity of nation-states: A prima facie case for secession”, (1996) 20 Suffolk Transnational Law Review 180
242. Cassese. Self-Determination of Peoples. A Legal Reappraisal, Suffolk Transnational Law Review, n. 22, 219.
243. Demissie, Suffolk Transnational Law Review. n. 155, 180
244. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Suffolk Transnational Law Review, n. 22, 220
245. Hannum, Autonomy, Sovereignty and Self Determination, Suffolk Transnational Law Review, n. 6, 337.
246. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Suffolk Transnational Law Review. n. 22, 220
247. Erlich, Suffolk Transnational Law Review. n. 153, 179–180.
248. See 1975 Britannica Book of the Year, Chicago, 1975, 289–290.
249. E.J. Keller, “The ethnogenesis of the Oromo nation”, (1995) 33 Journal of Modern African Studies 622–623.
250. See e.g. Human Rights Watch/Africa, “Ethiopia. Reckoning under the Law”, Dec. 1994.
251. See generally J. Young, “The Tigray and Eritrean Peoples Liberation Fronts: a history of tensions and pragmatism”, (1996) 34 Journal of Modern African Studies 105–120.
252. Young points out that the relationship between the EPLF and the TPLF “was based on the EPLF's recognition of the rights of the oppressed nationalities of Ethiopia and on the TPLF's recognition of the just right of the Eritrean people for self-determination.” See Journal of Modern African Studies, 112.
253. See also 1992 Bntanmca Book of the Year, Chicago, 1992, 357
254. Keesing's Record of World Events, Reference Supplement, 1992, R10
255. Demissie, Keesing's Record of World Events, Reference Supplement, n. 155, 181
256. P. Decraene, “La Corne orientale de l'Afrique, une sous-région entierement destabilisee”. (1998) 63 Geopohtique 74.
257. H. Asscfa, “Ethnic conflict in the Horn of Africa”, in K. Rupesinghe and V. A. Tishkov (eds.), Ethniaty and Power in the Contemporary World. New York, 1996, 35
258. Markakis, Ethniaty and Power in the Contemporary World, n. 146, 230, who points out that after the TPLF's creation in 1975, it first opted for the secession of Tigray from Ethiopia but then advocated for remaining in a democratic, pluralistic and decentralized Ethiopia. Similarly the OLF's goal was to establish an independent Oromo state (Oromia). They, however, chose to participate in the new experiment of the ethnic federation when the military regime was defeated. Today it seems that the OLF has again espoused its first idea of striving for independence.
259. See generally on the Eritrean independence, D. Pool, “Eritrean independence”, (1993) 92 African Affairs 389–402.
260. 1992 Britannica Book of the Year, African Affairs, n. 158. 357
261. Keesing's Record of World Events. Reference Supplement 1992, African Affairs, n. 161, R10.
262. Keesing's Record of World Events, Reference Supplement 1992, African Affairs, n. 161, R10. After the transition period, Meles Zenawi changed his position of president for that of executive prime minister. The new president became Negaso Gidada, the information minister during the transitional government.
263. African Affairs
264. 1992 Britannica Book of the Year. African Affairs, n. 158, 357
265. Keesing's Record of World Events, Reference Supplement 1992, African Affairs, n. 161, R10
266. Pool, African Affairs, n. 163, 392.
267. African Affairs
268. Keesing's Record of World Events, 1993. 39308.
269. Keesing's Record of World Events, 39307.
270. Keesing's Record of World Events. 39403.
271. Keesing's Record of World Events. 39450.
272. Keesing's Record of World Events. 39451.
273. Keesing's Record of World Events, 39490 and 39451.
274. J. Skeet, “Building myths”, (1995) BBC Focus on Africa
275. reprinted in (Sept./Oct. 1995) De Nieuwe Hoorn van Afrika 30.
276. See J. Abbink, “Ethnicity and constitutionalism in contemporary Ethiopia”, (1997) 41 J.A.L. 159–160, mentioning that unlike South Africa which in one way or another also gives ethnicity an official recognition, “Ethiopia is different in the sense that ethnic identity is the normative identity on the basis of which the new state prefers to deal with its citizens in man)- spheres of life, especially the political and economic.”
277. The 1992 elections were the first attempt aimed at holding multi-party elections in Ethiopia. The elections, however, encountered several administrative, logistic and political problems. Five political parties, including the Oromo Liberation Front (OLF), even withdrew their participation. See A. Abdisa, “Democratic elections held”, (Sept. 1994) Ethioscope 18.
278. See Abdisa, Ethioscope, n. 177, 19. Discussion forums were held in Cairo, Paris, New Delhi, Poona, Accra, Seoul, Vienna, Djibouti, Harare, Beijin, New York, Ottawa, Asmara Assab, Mcndefera, Keren, Massawa and Dekc Mehari. Moreover, other international NGOs, including the Inter-Africa Group, participated in the project of drafting the constitution to enrich the process by sharing their experience.
279. See A. Abdisa, “The Ethiopian Constitution”, (Jan. 1995) Ethioscope 29.
280. For the text of the Ethiopian Constitution, see VI the Constitution of the Federal Democratic Republic of Ethiopia, reprinted in A. P. Blaustein and G. H. Flanz (eds.), Constitutions of the Countries of the World, New York, 1996. The 1994 Constitution was the fourth Ethiopian Constitution. Prior constitutions have been adopted in 1931, 1955 and 1987.
281. For an account of the drafting of the fundamental aspects of the 1994 Constitution, see Abdisa, Constitutions of the Countries of the World, n. 177, 28–31. Although the 1994 Constitution entered into force on 21 August, 1995, it was only officially published in the Federal Negarit Gazeta on 12 December, 1996.
282. The right to self-determination including secession was an intensively debated issue by the Constitutional Assembly. Opponents of the right argued that the exercise of the right would lead to national fragmentation and disunity. Moreover, there was no democratic precedent accepting such right in their constitution. In addition, some members of the federation possessing rich natural resources would be inclined to secede leaving an impoverished state. In turn, those who favoured the right of self-determination including secession maintained that it constituted a fundamental human and democratic right because it would guarantee the freedom of nations and nationalities from oppression and exploitation. Not including the principle in the constitution would mean a lack of confidence in nations and nationalities and in a democratic process in general. At the end of the debate, the reference to self-determination was adopted with a vote of 508 in favour, seven against and one abstention. See Abdisa, Constitutions of the Countries of the World, n. 177, 30.
283. Although the Constitution recognizes a broad right to self-determination based on ethnic affiliation, still man)” armed movements are not satisfied by the constitutional setting and the way it is implemented and are today fighting for independence. See Decraene, Constitutions of the Countries of the World, n. 161, 74.
284. It is probably the paradox of the present Constitution that if no federal solution had been adopted with a such broad right to self-determination, not so man)’ sub-nationalities or centrifugal forces would make claims for separation. See Ali, Constitutions of the Countries of the World, n. 145, 24.
285. “Meles Zenawi drops to the top”, (Oct. 1995) New African
286. reprinted in (Sept./Oct. 1995) De Nieuwe Hoorn van Africa 27
287. Skeet, De Nieuwe Hoorn van Africa, n. 175, 30.
288. See J. Hammer, “Power to the people”, (17 July, 1995) Newsweek
289. reprinted in (Sept./Oct. 1995) De Xieuwe Hoorn van Africa 26.
290. See also Abbink, De Xieuwe Hoorn van Africa, n. 176, 170, who mentions that “[w]hen reading the Constitution it is also notable how far the proclaimed text is removed from the actual practice of the political culture and social relations in Ethiopia.”
291. See M. Haile, “The new Ethiopian Constitution: Its impact upon unity, human rights and development”, (1996) 20 Suffolk Transnational Law Review 21–22.
292. The International Covenant on Civil and Political Rights, General Assembly Resolution 2200 (XXI).
293. Annex, (16 Dec, 1966), 999 U.N.T.S. 171
294. African [Banjul] Charter on Human and Peoples' Rights, 479 U.N.T.S. 39, 72 (1963).
295. Constitution of Ethiopia, art. 13.
296. See also Abbink, Constitution of Ethiopia, n. 176, 166.
297. Constitution of Ethiopia, art. 39(2) which provides as follows: “Every Nation. Nationality and People in Ethiopia has the right to speak, to write and to develop its own language; to express, to develop and to promote its culture; and to preserve its history.”
298. See e.g. Y. Dinstein, “Collective human rights of peoples and minorities’”, (1976) 25 International and Comparative Law Quarterly 103–105
299. B. Driessen, “Self-determination: secession, autonomy and integration”, (1993) American Society of International Law Proceedings 57.
300. See Draft Declaration on Indigenous Peoples, UN Doc. E/CN.4/Sub. 2/1994/2/Add.l. Several articles of this draft declaration have a similar content as Article 39(1)-(3) of the Constitution of Ethiopia were it not that the draft declaration refers to the specific case of indigenous peoples. Article 2 of the draft declaration provides as follows: “Indigenous individuals and peoples are free and equal to all other individuals and peoples in dignity and rights, and have the right to be free from any kind of adverse discrimination, in particular that based on their indigenous origin or identity.”
301. To implement this right, so-called “special districts” or autonomous enclaves in a member State of the federation (liyyu woreda) have been established. They are created along ethnic lines. See Abbink, UN Doc. E/CN.4/Sub., n. 176, 167.
302. Constitution of Ethiopia, art. 47(3).
303. See T. Franck, “The emerging right to democratic governance”, (1992) 86 American Journal of International Law 46–91.
304. See G. Mekasha, “Election without opposition”, (May 1995) 31 Ethiopian Review 26, who writes that the leaders of the EPRDF in an “affirmation of their long-standing dedication to Stalinism … echo the defunct bogus constitution of the Stalin era with the words, ‘every- nation, nationality and people in Ethiopia has the unconditional right to self-determination, including the right of secession”.”
305. Quoted in Haile, Ethiopian Review, 32, n. 149.
306. However, the Soviet Constitution, even the 1977 Constitution, never explained how this right had to be implemented. Only in 1990, when the Soviet Union was confronted with sccessionary demands, it adopted the law “on the procedure to resolve matters relating to the separation of a federal republic from the USSR” (Izvestia, no. 97, 6 April, 1990).
307. A good overview of the procedure of this law can be found in M. Lesage, “La crise du federalisme sovietiquc”,. Notes et Etudes documentaires, Paris, 1990, 113–115 or in Cassese, Self-Determination of Peoples.
308. A Legal Reappraisal, Notes et Etudes documentaires, n. 22, 265. Cassese summarized the procedure as follows: “ft]he law provided that a Republic could secede if a referendum was first requested by the Republic's Supreme Soviet or by at least one-tenth of the USSR citizens permanently resident on the Republic's territory and possessing the right to vote under USSR legislation {Art. 2(1)). The referendum was to be held by secret ballot no sooner than 6 and no later than 9 months later: Art. 2(3). Provision was made for observers from the USSR, or other Republics or from the United Nations (if the USSR Supreme Soviet deemed it necessary) (Art. 5). Secession required a two-thirds majority of the Republic's electorate: Art. 6(1). Complete independence could, however, only be obtained after a transition period of a maximum of five years, during which time ‘matters arising in connection with the Republic's secession from the USSR must be resolved’: Art. 9(1). Moreover, a confirmation referendum requiring a two-thirds majority could be requested at the end of the five-year period by the Republic's Supreme Soviet or by one-tenth of the USSR citizens permanently resident on the Republic's territory and possessing the right to vote under USSR legislation: Art. 19(1). If a two-thirds majority in favour of secession was not then reached, the decision on secession w:as to be regarded as ‘repealed’ and ‘the procedures envisaged by this Law terminated1: Art. 19(2). Even if the required two-thirds majority for secession was reached, this was not the end of the story. Completion of the secession process was subject to ratification by the USSR Congress of People's Deputies, in that the Congress was to adopt ’a resolution confirming the completion of the process for co-ordinating the interests and satisfying the claims of the seceding Republic, on the one hand, and of the USSR, union Republics or autonomous Republics, autonomous formations and ethnic groups referred to in Art. 3(2) of this law, on the other hand’: Art. 20(1). The Law also stipulated that if a referendum in a Republic failed to endorse secession, a new referendum could only be held ten years later (Art. 10).
309. Constitution of Ethiopia, art. 2.
310. press Conference Dakar, Senegal, 4 January, 1970, reprinted in UN Monthly Chronicle, Vol. 7 (Feb. 1970), 36.
311. Declaration on the Granting of Independence to Colonial Countries and Peoples, General Assembly Resolution 1514 (XV) (14 Dec., 1960) (adopted with a vote of 89 to none, and with 9 abstentions (Austria, Belgium, Dominican Republic, France, Portugal, Spain, Union of South Africa, United Kingdom and United States of America)).
312. Other examples have a more historical value as they all belong to states or regimes that have collapsed since. Moreover, these few historical examples refer to a right to secession in the Constitution without providing a mechanism to implement it. Art. 72 of the 1977 Constitution of the Soviet Union stated that “[t]he right to free secession from the USSR shall be preserved for each republic.” For another example, one has to go as far as the 1947 Constitution of the Union of Burma. See L. C. Buchheit, Secession. The Legitimacy of Self-Determination, New Haven, 1978, 99–100.
313. See Constitution of Ethiopia, art. 39(4).
314. A sceptical Ivor Jennings declared that “[n]early forty years ago a Professor of Political Science who was also President of the United States, President Wilson, enunciated a doctrine which was ridiculous, but which was widely accepted as a sensible proposition, the doctrine of self-determination. On the surface it seemed reasonable: let the people decide. It was in fact ridiculous because the people cannot decide, until somebody decides who are the people.” Quoted in M. Pomerance, “Self-determination today. Metamorphosis of an ideal”, (1984) 19 Israel Law Review 3–4.
315. Constitution of Ethiopia, art. 39(5).
316. See also Abbink, Constitution of Ethiopia, n. 176, 166.
317. Cassese, Self-Determination of Peoples. A Legal Reappraisal, Constitution of Ethiopia, n. 22, 347.
318. See Draft Declaration on Indigenous Peoples, UN Doc. E/CN.4/Sub. 2/1994/2/Add.1. Article 8 provides as follows: “Indigenous peoples have the collective and individual right to maintain and develop their distinct identities and characteristics, including the right to identify themselves as indigenous and to be recognized as such.”
319. Constitution of Ethiopia, art. 46(2).
320. Haile, Constitution of Ethiopia, n. 184, 24.
321. Abbink argues that this aspect makes the Ethiopian federation “not federal enough” because the member states of the federation “do not have a role in debating policies and in proposing legislation formulated at, or with an impact on, the federal level” See Abbink, Constitution of Ethiopia, n. 176, 167. indeed, the HF has only a legislative power limited to the concurrent competencies shared with the House of People's Representatives.
322. Haile, Constitution of Ethiopia, n. 184, 24.
323. But see Abbink, Constitution of Ethiopia, n. 176, 168, who finds that the HF has restricted powers limited to “‘settle disputes' between member states, interpret and contibutc to amending the Constitution.” He therefore, advocates that the HF should receive more powers especially relating to economic, infrastructural and development issues.
324. Constitution of Ethiopia, art. 83(1).
325. C. Anyangwe, “Comments on the Draft Constitution of Ethiopia by international legal experts”, (1994) The InterAfrican Group 1, writes that “Article 84(1) purports to vest the ‘constitutional court’ with judicial powers. This is not borne out by the role assigned to the ‘Court1. Besides, why should a court exercising judicial powers be subjected to the political organ that the FC is? It is certainly incompatible with the dignity, stature, power and the independence of the judiciary that the ”Constitutional Court’, presided over by the Chief Justice of the Federation, should be subordinated to the FC, a political institution.”
326. Constitution of Ethiopia, arts. 83(2) and 84(1).
327. Constitution of Ethiopia, art. 62(3).
328. Constitution of Ethiopia, art. 62(4).
329. Constitution of Ethiopia, art. 62(6).
330. Constitution of Ethiopia, art. 62(7).
331. Constitution of Ethiopia, art. 52(2)(a) and (f).
332. Constitution of Ethiopia, art. 52(2)(b).
333. Constitution of Ethiopia, art. 52(2)(c).
334. Constitution of Ethiopia, art. 52(2)(d) EC and art. 40.3 EC stating that “[t]he right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in all peoples of Ethiopia. Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange.”
335. Constitution of Ethiopia, art. 52(2)(e).
336. Constitution of Ethiopia, art. 52(2)(g).
337. Constitution of Ethiopia, art. 78(3) and (2).
338. Constitution of Ethiopia, art. 39.
339. Constitution of Ethiopia, art. 5(3).
340. Constitution of Ethiopia, art. 5(1) and (2).
341. Constitution of Ethiopia, art. 93(l)(a).
342. Constitution of Ethiopia, art. 93(4)(c).