Federalism and the adjudication of constitutional issues: The ethiopian experience

Netherlands International Law Review

Volumn 52, Issue 1, 2005, Pages 1-30

  Fiseha, Assefa ^a  

^a UTRECHT UNIVERSITY   (Netherlands)

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EID: 84945460281     PISSN: 0165070X     EISSN: 17416191     Source Type: Journal    
DOI: 10.1017/S0165070X0500001X     Document Type: Article

References (69)

1. This position is reflected in the work of the instrumentalists, who view religious and ethnic groups as a means to achieve some political and economic goal and having no relevance thereafter. Please see J. Markakis, Resource Conflict in the Horn of Africa (London, Sage Pub-lications 1998); C. Clapham, 'Ethnicity and the National Question in Ethiopia’, In P. Woodward and M. Forsyth, eds., Conflict and Peace in the Horn of Africa: Federalism and its Alternatives (Aldershot, Dartmouth 1994) pp. 30 - 35; J. Abbink, 'New Configurations of Ethiopian Ethnicity: The Challenge of the South’, 5 Northeast African Studies (1998) p. 60.
2. According to a population census carried out in 1994, the Ethiopian population amounts to almost 54 million and if the annual rate of 2.73 per cent population growth is added for the last decade, the present estimate is more than 67 million. Like many other multi-ethnic states, Ethiopia presents a mosaic of nationalities speaking a multiplicity of languages, including, inter alia, the Oromos (18.4 million), the Amharas (13.8 million), the Tigrayans (3.2 million), the Afars (some one million), the Somalis (3.1 million), a cluster of more than 45 five ethno-linguistic groups living under the Southern Nations, Nationalities and Regional Peoples State (hereinafter: SNNPRS), which, among others, include the Sidamas, the Guraghes, the Hadiyas, Kambata, and the Wolayta, constituting 11 million. There are more than 80 ethnic groups and languages, of which 50 per cent are Orthodox Christians, a religion practiced since the fourth century, and 32 per cent are Muslims, again a religion practiced since the seventh century. SeeCentral Sta-tistical Authority: the 1994 Population and Housing Census of Ethiopia V. II Analytical Report (Addis Ababa, 1999). 3. The notion of majority and minority in the Ethiopian federal context is indeed confusing. One possible approach to understand it is to determine its meaning at federal and state levels. If 'majority’ is understood to be a numerical majority dominating a certain political process, then at federal level none of the nationalities taken alone constitute a majority. In principle, the Constitution appears to transform every nationality into a majority by granting a 'mother state’ or local government, but that applies only for some of the dominant ethnic groups. The Oromos constitute the largest ethnic group, but they are by far less than 50 per cent. Perhaps the absence of such a numerical majority that dominates the political process at the center has a lot to explain for the persistent regime instability, the interethnic tension and the fight for exclusive control of federal power. However, at state level, two contradictory notions of majority and minority are emerging. In the states of Oromia, Amhara, Tigray, Afar and Somali, five out of the nine regional states each of them dominate the political process in their respective states. Other ethnic groups in each of these regions are, therefore, minorities. However, these contextually defined majorities will become mInorities in other regional states. Another dimension emerging in the city state of Harar, Gambela and Benishangul Gumuz states is that the numerical major-ity remains to be a political minority in terms of its influence in the regional political process. In the state of Harar, the Hararies, constituting only seven per cent of the total population in the region play a key role over the rest of the ethnic groups living in the region. In Gambela despite some controversy over figures, the Nuer stand to be numerically greater than their rival, the Anuaks but the latter, at least until the 2003 crisis, dominate the region’s political process since 1991. The same holds true in the Benishangul Gumuz state. While the Berta remain to be numerically greater than the Gumuz, the latter dominate the political process in the region. In these three cases, therefore, the notion of majority and minority seems to have been reversed from the ordinary understanding of the concepts.
3. For more on the distinction between nation-state federations and multi-ethnic federations as well as the details of the crisis of the Ethiopian state see A. Fiseha, The Federal System in Ethiopia from a Comparative Constitutional Law Perspective, PhD Thesis, Faculty of Faw, University of Utrecht, 2005 (unpublished). 5. Certainly there are some critical limitations on the new federal system and there is no attempt to discuss them here. For some of the views see A. Fiseha, 'Federations and the Threat of Local Tyranny: The Case of Ethiopia’, 21 Horn of Africa Journal (2003) pp. 63 - 87; M. Men-nasemay, 'Federalism, Ethnicity and the Transition to Democracy’, 21 Horn of Africa Journal (2003) pp. 88 - 115; A.G. Selassie, 'Ethnic Federalism: Its Promise and Pitfalls’, 28 Yale JIL (2003) pp. 51–107.
4. The present federal Constitution was adopted on 8 December 1994, but came into force on 21 August 1995. See Arts. 2 and 3, The Constitution of the Federal Democratic Republic of Ethiopia, Proclamation No. 1/1995, A Proclamation to Pronounce the Coming into Effect of the Constitution of the Federal Democratic Republic of Ethiopia, hereinafter referred to as the Ethio-pian Constitution. All articles referred to below are from this text, unless stated otherwise.
5. Although there was a major consensus about the need for a federal system, there was serious disagreement about the basis for reorganizing the constituent units. The context of the present based federal system has much to do with the process of state formation, which brought about several ethnic and religious groups at the end of the 19th century. Although the process brought such groups into the state administration, the state that subsequently appeared was narrowly defined. The various ethno-linguistic groups were forced to 'melt’ into a cultublndre and identity that did not fairly represent theirs. This was further reinforced by the popularization of the 'nationality question’ of the 1960s by the Ethiopian Student Movement and the subsequent defeat of the multi-ethnic parties after the 1974 Revolution. The exact scope and meaning of the nationality question remains to date contested but to the ruling party it includes the nationalities right to self-rule, to use their language and even includes secession. Hence when the Ethiopian Peoples Revolutionary Democratic Front (EPRDF) came to power in 1991 with its own agenda of emancipating 'oppressed nationalities’, it was the only vanguard force with the responsibility of restructuring the state along ethnic based federalism. However, critics note that the political reality and the decade of federal experience in fact leaves the regions less power than is promised in the Constitution. Certainly this is due to centralized party structure and centralized policy-making. J. Young, 'Ethnicity and Power in Ethiopia’, 70 Review of African Political Economy (1996) pp. 531 - 542; A. Fiseha, 'Federalism: The Multiethnic and Multicultural Challenge: The Case of Ethiopia’, in Federalism, Decentralization and Good Governance in Multicultural Societies (Fribourg, Institute of Federalism 2003) pp. 65–105.
6. Even though there is widely held view that federalism provides midway options for those who want to maintain the territorial integrity of existing states and for those who claim regional autonomy and that federalism enables to forge unity out of diversity, until recently, Nigeria is the only country in the continent that claimed to be federal. In many other African countries federalism is viewed as means for disintegrating the state. Nigeria is an exception but it certainly is not a happy case, as for most of its time, the federal system has been under military dictators, which goes contrary to the spirit of negotiation, the idea of federalism as a covenant and the division of power in federalism. As of late, South Africa also seems to be evolving towards a federal system.
7. This federation lasted for a decade (1953–1963), but was not able to forge genuine unity in diversity between the whites and the blacks. It was rather a federation based on the supremacy of the whites. The situation in Southern Rhodesia was particularly acute (white minority notori-ous for its discriminatory laws against the blacks) compared to the other two. There was thus a tension by the two northern territories that Southern Rhodesia’s policy affecting the blacks will be extended to them who were slightly guaranteed with native paramouncy.
8. There is hardly any dispute that these federations were imposed by colonial forces. The French imposed such an arrangement in the Central and West Africa and the British in East and Central Africa including Nigeria. Besides, they were also nation-state federations ill-suited to a multi-ethnic context. U. Hicks, Faderalism: Failure and Success: A Comparative Study (London, The Macmillan Press 1978) p. 4; J. McGarry and B. O’Leary, Federalism as a Method of Ethnic Conflict Regulation, available at as visited on 20 January 2004.
9. D. Elazar, Exploring Federalism (Tuscaloosa, University of Alabama Press 1987) pp. 240-244; Hicks, Human Rights in the World n. 10, at pp. 171-196; T. Lranck, 'Why Lederations Pail?’, in T. Franck, ed., Why Federations Fail: An Inquiry into the Requisites for Successful Federalism (New York, New York University Press 1968) pp. 167–200. 12. G. Hyden, 'Electoral Systems and Political Reform’, in Constitutionalism: Reflections and Recommendations, Proceedings of the Symposium on the Making of the New Ethiopian Constitution (Addis Ababa, Inter Africa Group 1993) (hereinafter: Constitutionalism) p. 9; See E. Eshete, Ethnic Federalism: New Frontiers in Ethiopian Politics, a paper presented at the First National Conference on Federalism, Conflict and Peace Building, Addis Ababa, 5–7, May 2003 (unpublished).
10. W. Kymlicka, Emerging Western Models of Multicultural and Multination Federalism: Are They Relevant for Africa?, a paper presented in at the conference on Ethnic Federalism: The Challenges for Ethiopia, Addis Ababa, 14 – 16 April 2004 (unpublished). 14. R. Doom, 'International Setting’, in Constitutionalism, Human Rights in the World n. 12, at p. 3.
11. The terminology was coined by A. Stepan, 'Federalism and Democracy: Beyond the US Model’, 10:4 Journal of Democracy (1999) pp. 19 – 33. The terminology 'coming together’, center seeking federations or federalism by aggregation, refer to the idea of a federal system built from formerly independent states as in the United States, as well as Switzerland. 'Holding together’, center fleeing federations or federalism by devolution refer to a federal system built from a formerly unitary state as in India and Nigeria. Certainly there is a view that holds that the process in which a federal system evolves has implications on the autonomy of the constituent states. In the former type, as the constituent states predate the federation, they often are reluctant to give wide powers to the center and this is probably the reason why at the initial stage of such federations the center is very weak compared to the states. The opposite seems to be true in holding together federations. Of course, the two approaches are not mutually exclusive. Some federations, such as Germany and India, reflect characteristic of both. F. Nahom, Constitution for a Nation of Nations (Lawrenceville, New Jersey, Red Sea Press 1997) p. 51; see also R. Watts, 'Forward: States, Provinces, Lander, and Cantons: International Variety Among Sub-national Constitutions’, 31 Rutgers LJ (2000) pp. 941–957.
12. Art. 8. Indeed it is stated that the Constitution is an expression of their sovereignty (Art. 8 (2)).
13. See Arts. 46 and 47.
14. See Art. 39.
15. Art. 93.
16. Eshete contends that this aspect of the federation is not altogether a fiction. The northern part of the country during the late period of Derg was practically de facto independent particu- larly, Tigray under TPLF (Tigrayan Peoples Liberation Front) had the experience of complete autonomy. He also states that the unitary state was completely dissolved in 1991 leaving only nationality-based parties freely to reconstruct the state. Eshete, Human Rights in the World n. 12.
17. Following the downfall of the military regime in, May 1991, Ethiopia had a transitional government from 1991 up to 1994. The number of constituent states during this transition was 14. Some five regional states in the South merged in 1994 forming the SNNPRS. As result, one can say some of the territorial boundaries of the regional states were drawn as in the SNNPRS after the decision to form a federal state.
18. While a glance at the federal Constitution might give one the impression that the con-stituent states in Ethiopia have so much power, one might even call it as a 'confederation of nationalities’, federal practice indicates that in reality the autonomy of the states is much lesser than what appears on paper. One reason is the fact that the ruling party controls power both at federal and state level. Policy making is thus very much centralized. Secondly, after the war with Eritrea, it seems that the federal government is undertaking some mutation in favor of centralization compared to the pre-1998 period. For further details see A. Fiseha, Theory versus Practice in the Implementation of Ethiopia’s Ethnic Federalism, a paper presented in at the Conference on Ethnic Federalism: The Challenges for Ethiopia, Addis Ababa, 14–16 April 2004 (unpublished).
19. One of the distinct features of the Ethiopian federal system is that the second chamber, otherwise known as the House of Federation, HOF, does not have a law-making function. The constituent states upon whom sovereignty is entrusted do not have a mechanism to influence and chenmyck the decision-making process at the center. The federal government can issue a law that encroaches on the power of the constituent states and the latter can only complain after the law is issued to the HOF for interpretation. See, infra, section 5.
20. Y. Ghai, 'Ethnicity and Autonomy: A Framework for Analysis’, in Y. Ghai, ed.,Autonomy and Ethnicity: Negotiating Competing Claims in Multi3ethnic States (Cambridge, Cambridge University Press 2000) p. 11; the Ethiopian federation misses the shared rule aspect of federalism which is a characteristic feature of many federations. Federations are based on the division of power between the federal government and the states. However, as far as the powers granted to the center are concerned, the federal idea compels that the constituent states should share and influence the decision-making process at the center.
21. See M. Cappelletti, The Judicial Process in Comparative Perspective (Oxford, Clarendon Press 1989) pp. 169, 312–313.
22. This is important because however neat the division of power between the two governments moy be, it is impossible to avoid an overlap. Besides, there also is the regime of shared powers in the form of concurrent and framework laws that brings the two governments into constant interaction. See Art. VI of the US Constitution; Swiss Constitution Art. 49; German Basic Law Arts. 39, 74, 75. 29. See Biyadglegn Meles, v. the Amhara National state, 8 May 1996 (unpublished). The federal law challenged was Proclamation No. 89/1997, Federal Rural Land Administration Proclamation, Federal Negarit Gazeta, 3rd Year No. 54, Addis Ababa, 7 July 1997.
23. Art. 8 of Proclamation No. 89/1997 cited above.
24. Federal systems have different techniques of dividing power between the federal and state governments. One such category refers to shared powers. The second includes framework and concurrent powers. Framework, in the context of federal systems, refers to laws in which the federal government is, in principle, permitted to issue general legislation in a specific policy field, but such legislation is subject to strict conditions because it has to leave substantial room for the states to issue their own legislation within the limits set by the federation. Concurrent power refers to powers attributed to both entities. However, one of the entities, often the states, are allowed to exercise this power until tpdhe federal government steps in to legislate on such powers. See P. Blair, Federalism and Judicial Review in West Germany (Oxford, Clarendon Press 1981) p. 85.
25. 'Constitutional language is often imprecise or inconclusive, and the circumstances of its application often unanticipated or unforeseeable by its authors.’ J. Brudney, 'Recalibrating Federal Judicial Independence’, Ohio State LJ (2003) p. 175. 33. Cappelletti, Human Rights in the World n. 27, at pp. 115–131.
26. M. Cappelletti, Judicial Review in the Contemporary World (Indianapolis, Bobbs-Merrill 1971) p. 15.
27. Marbury v. Madison 5 US 1 Cranch 137 (1803). For a detailed account of judicial review and this famous case see R. Carr, The Supreme Court and Judicial Review (Westport, CT, Greenwood Press 1970) pp. 37 – 57. 36. This is judicially invented doctrine from Art. III of the US Constitution. Thus the US Supreme Court declines to give advisory opinions and to adjudicate what the German Federal Constitutional Court does by way of abstract review. It is established that federal judges will not render an opinion or decide a case unless there is an actual dispute between litigants before the Court. The Court settles the adverse interests and the decision must have effect on the parties. The case is then said to be justiciable. It is one of the mechanisms of self-restraint developed by the Court over the years to avoid head on clashes with the other branches of the government. J. Ferejohn and L. Kramer, 'Independent Judges, Dependent Judiciary: Institutionalizing Judicial Self Restraint’,77 NYUL Rev. (2002) pp. 1003–1008.
28. See infra n. 67 and the accompanying text.
29. For more comprehensive treatment of the differences see A. Brewer-Carias, Judicial Review in Comparative Law (Cambridge, Cambridge University Press 1989) pp. 131–135.
30. This was the essence of Alexander Hamilton’s argument in the Federalist Papers No. 78, which John Marshal was to further develop it in his famous Marbury v. Madison decision. Hamilton wrote: 'The Interpretation of the Law is the proper and peculiar province of courts. A Constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular Act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.’
31. At this juncture one may wonder as to why many of the continental systems opted for a model of constitutional court other than the regular judiciary. One reason is related to the rigid application of the separation of powers and the limited application of the supremacy of parliament. It is believed that constitutional interpretation or the invalidation of laws is viewed as a 'political act’ that encroaches upon the exclusive power of parliament to enact law. It is not surprising to observe its political tones, both in the manner of appointment of the judges to the constitutional court and in the sort of questions brought before the court. Consequently, the ordinary judge must accept and apply the law as he finds it. But this does not imply that the laws are immune from review, though not by the ordinary courts. The notion of supremacy of parliament was overtaken by events that followed the two World Wars and accordingly legislation was subject to a review by a constitutional court rather than by the regular judiciary. The second reason is related to the absence of principle of the doctrine of stare decisis in civil law countries and this creates the danger of interpreting laws by judges differently. This potential for inconsistency in decisions may create uncertainty about the constitution. To avoid this problem, constitutional courts had to be established whose decisions are final and binding on all other courts and branches of the government. Thirdly, it is argued that the judicial system of the civil law countries is unsuitable for adjudicating constitutional issues. They lack the compactness and unitary feature that one sees, for example, in the US Supreme Court. In the civil law countries, not only are there different branches of supreme courts for different fields of law like labor, family and commerce, but they are also subdivided into different divisions. Such highest courts as well are flooded with routine cases less relevant for constitutional interpretation. The background and professional training of the ordinary judges compared to the common law judge also has some role. In the former they are often career judges. See Cappelletti, Human Rights in the World n. 27, at pp. 49 – 52, 137; for a very recent account of the personal background of the Chief Justices of the Supreme Court of the United States, indicating very rich experience in other branches of the government before assuming judicial position, indeed one was even a President of the country see W. Rehnquist, 'Lecture: Remarks of the Chief Justice: My Life in the Law Series’, 52 Duke LJ (2003) pp. 787–805.
32. N. Johnson, 'The Federal Constitutional Court: Facing Up to the Strains of Law and Politics in the New Germany’, In K. Goetz and P. Cullen, eds., Constitutional Policy in United Germany (London, Frank Cass 1995) p. 132.
33. Apart from this rather over simplified differences there exist other deeper variations among the institutions. The extent of the tribunal’s jurisdiction has already been briefly mentioned. In many cases not only has the Federal Constitutional Court clear mandate but it also does not shy away to consider cases, which the Smrgtupreme Court may consider it political. There are also deeper variations in the methods and doctrines of interpreting the constitutions. For further details see D. Finck, 'Judicial Review: The United States Supreme Court versus the German Constitutional Court’, 20 Boston College of International and Comparative L Rev. (1997) pp. 123 - 157; J. Brudney, 'Recalibrating Federal Judicial Independence’, 64 Ohio State LJ (2003) pp. 149 - 194; D. Beatty, 'The Forms and Fimits of Constitutional Interpretation’, 49 AJCL (2001) pp. 79 – 120. 45. SeeYe Ethiopia Hige Mengist Gubae Kale Gubae (Minutes of the Constitutional Assem-bly) vol. 4, 21–27 November 1994, discussions on Arts. 59, 61 and 62.
34. See Art. 62 (1) that states: The House [House of Federation] has the power to interpret the Constitution.’ And Art. 61(1) states: The House of Federation is composed off representa-tives of Nations, Nationalities and Peoples.’ Each nationality has at least one member but each nationality is represented by one additional representative for each one million of its population. I have earlier on argued as a result that the HOF is majoritarian in much the same way as the other house and the claim that it is guardian of the nationalities is rather fluid at best and pretentious at worst. At state level two patterns are evolving. In the regional states of Tigray, Amhara, and Oromia, the state Constitutions established 'Constitutional Interpretation Commis-sion’ composed of representatives from each district Council. In Tigray, the members of the HOF are also members of the Commission and in Amhara every nationality is also represented. In SNNPRS, however, the Constitution established 'Council of Nationalities’ a house more or less identical with the federal HOF both in terms of power and composition. In all of the regional states mentioned the Commission or the Council of Nationalities is assisted by the CCI of each respective state. The CCI in the states as well is designed in much the same way as the CCI of the HOF. See Arts. 70 and 71 of Amhara, Arts. 67–69 of Oromia, Arts. 67–70 of Tigray and Arts. 58, 59 and 78 of SNNPRS state Constitutions.
35. For an interesting summary of the arguments you may refer to A. Fiseha, 'A New Perspective on Constitutional Review’, Tilburg Foreign L Rev. (2002) pp. 237–255. The judiciary is often criticized for being anti-majoritarian, at odds with the democratic principle; judicial activism is also considered at odds with the principle of separation of powers, for it takes away the role of the other branches of governments and many consider the judiciary lacks the competence to make law. But such opinions at times go too far in the sense that judicial functions have procedural and substantive limits. Judicial discretion is not as open as many think it to be. Besides, modern constitutions stipulate many mechanisms of preventing tyranny and do not as such provide pure democracy. Thus, we speak of horizontal and vertical separation of powers, federalism, supremacy of the constitution, checks and balances, human rights and so on. Apart from this, the legitimacy of the court and legitimacy of the other political branches come from different sources. For the judiciary, it is its impartiality and its procedural fairness that it provides to the parties that serves its legitimate existence. For the other branches, it is democratic accountability to the electorate. More importantly, even in the area of constitutional review, the courts may have the last say, but it is only for a time. The court may modify or even reverse its former decision, the legislature may modify or even reverse the decision of the court, and constitutional amendment as well can reverse the decision of a court. The decision of the court may thus be overruled by other branches of government. See Cappelletti, Human Rights in the World n. 27, at p. 151; Abraham, Human Rights in the World n. 43, at pp. 72, 94–95.
36. A. Jembere, An Introduction to the Legal History of Ethiopia 1434–1974 (Hamburg, LIT Verlag Munster 2000) pp. 219, 227, 240.
37. Under the unitary systems, the judiciary was contained within the executive branch. The federal Supreme Court was separated from the Ministry of Justice in 1992. It suffers from a severe shortage of qualified legal and judicial personnel to operate its many layers of courts. 50. For a detailed account of the arguments behind the dismissal of judges in the Transition period both by the victims and the side of the government see F. Elgesem, The Derg Trials in Context: A Study of Some Aspects on the Ethiopian Judiciary, Human Rights Report No. 1, 1998 (Oslo, Norwegian Institute of Human Rights, University of Oslo 1998).
38. Cappelletti, Human Rights in the World n. 27, at p. 58.
39. Only in his 2003 parliamentary report in July 2004, the Prime Minister mentioned signs of improvement in civil matters. See PM’s Performance Report of 2003, 4 at as visited on 9 July 2004. 53. Art. 82 of the Constitution; Art. 4 of Proclamation No. 250/2001, Council of Constitutional Inquiry Proclamation, Federal Negarit Gazeta, 7th Year No. 40, Addis Ababa, 6 July 2001.
40. There has been some confusion in the terminologies between what constitutes constitutional disputes and constitutional interpretation. Yet for those who are familiar with the jurisdiction of the German Federal Constitutional Court (it is no secret that the two new laws that regulate the powers of the HOF and the CCI are influenced by the experience of the Constitutional Court), constitutional dispute has a very narrow meaning. It refers to cases in which a matter is referred to the CCI or the HOF arising from a real case and controversy, which some refer to inciden-tal/concrete judicial review. However, as will be demonstrated later, constitutional interpretation could also arise in many other cases apart from real cases and controversies. Issues regarding separation of powers and federalism that are referred to the Constitutional Court or the HOF in the abstract are good examples.
41. Art. 84 of the Constitution; Art. 6 of Proclamation No. 250, 2001.
42. The practice so far indicates that the HOF has endorsed the decision of the CCI but in the Benishangul-Gumuz case (discussed latter in this article) it disregarded the opinion of the majority and the minority and came up with an entirely new decision. It also appears in many cases the CCI’s opinion is not well articulated and often is very brief. This is perhaps because the members are quite busy with other functions and have little time to do research concerning the cases.
43. Proclamation No. 251/2001, Consolidation of the House of the Federation of the Federal Democratic Republic of Ethiopia and to Define its Powers and Responsibilities, Federal Negarit Gazeta, 7th Year No. 41, Addis Ababa, 6 July 2001. 58. See A. Fiseha, 'Constitutional Interpretation: The Respective Role of the Courts and the House of Federation’, in Proceedings of the Symposium on the Role of Courts in the Enforcement of the Constitution (Addis Ababa, Birhanina Selam 2001) pp. 6–26.
44. See Art. 84 and compare the English and Amharic version. 60. Art. 9 of Proclamation No. 251/2001 sub 1 states: 'Unless otherwise proved to the contrary, the enacted law is presumed to be constitutional while the House starts to review its constitutional [sic] ity.’
45. Decision of the CCI, 25 January 2000 (unpublished).
46. Decision of the CCI, on an application made on 8, May 1996 (unpublished).
47. See Art. 2 (2) of Proclamation No. 251/2001 and Art. 2(5) of Proclamation No. 250/2001 respectively.
48. This fact was received with great surprise when brought to the attention of participants in seminar held in December 2002 at the Ghion Hotel in Addis Ababa by the present author, in which federal and state court judges as well as representatives of both federal Houses attended. No one appreciated that so much power has been taken away from the courts and the Deputy Chief Justice did not hide his astonishment. 65. D. Kommers, 'Comparative Constitutionalism: German Constitutionalism a Prolegom-enon’, Emory LJ (1991) pp. 837–874.
49. C. Wolf, The Rise of Modern Judicial Review (New York, Basic Books Inc. 1986) p. 102.
50. This notion is far from clear but according to the opinion of the Court, the Constitution has reserved certain kinds of questions for ultimate decision by the political branches and such questions are beyond the judicial examination or considered as non-justiciable. It is in a way one other item of judicial self-restraint. The Court removes some cases from consideration because the matter is deemed inappropriate for resolution by judges. But the borderline between what constitutes constitutional or political case is never easy to draw. Wolf, Human Rights in the World n. 66, at p. 265; Ferejohn and Kramer, Human Rights in the World n. 36, at pp. 1012–1015.
51. J. Choper, Judicial Review and the National Political Process (Chicago, The University of Chicago Press 1983) p. 263. 69. Art. 23 (4) of Proclamation No. 250, 2001.
52. Notable exception is National League of Cities v. Usury 426 US 833 (1976).
53. Choper, Human Rights in the World n. 68, at pp. 175, 206; E. Rubin and M. Feeley, 'Federalism-Some Notes on the National Neurosis’, 41 UCLA L Rev. (1994) pp. 903 - 952; E. Chemerinsky, 'The Values of Federalism’, 47 Florida L Rev. (1995) pp. 499–540.
54. New York v. United States 112 S. Ct. 2408 (1992).
55. Printz v. United States 521 US 98, 117 S. Cc. 2365 (1997).
56. United States v. Lopez 115 S. Ct. 1624 (1995).
57. United States v. Morrison 529 US 598, 608, (2000).
58. This refers to the Federal Constitutional Court’s competence to decide disputes as to the rights and duties of the federation and the states. It is basically a question of defining the respective jurisdiction of the concerned organs.
59. This refers to the determination of whether a norm of federal or state law is in conformity with the Basic Law or whether state law conforms to federal law. It can be initiated by federal or state government, one-third of the members of the Bundestag without reference to any concrete case. This procedure is unique in the sense that it has no parallel, for instance, in the United States. In the United States, safeguarding the Constitution is only possible as long as there is a case. See Basic Law Art. 93. 78. See Arts. 72 (2) and 75(2) of the Basic Law.
60. Basic Law Art. 93 (1)(2)(a). It is remarkable that the Land legislature has the right to bring this action before the Federal Constitutional Court. They are the ones who lost much of the power because of excessive exercise of federal concurrent power. 80. This is implied under Art. 23(4) of Proclamation No. 250, 2001.
61. See Art. 84 of Ethiopian Constitution; Art. 21 of Proclamation No. 250/2001; Art. 100 of the Basic Law.
62. W.K. Geek, 'Judicial Review of Statutes: A Comparative Survey of Present Institutions and Practices’, 51 Cornell L Rev. (1965–66) p. 279. 83. Art. 21 (2) of Proclamation No. 250, 2001. The Basic Law Art. 100 also stipulates the same principle. See also M. Borowski, 'The Beginnings of Germany’s Federal Constitutional Court’, 16 Ratio Juris (2003) p. 156.
63. See Art. 93 (1)(4)(a) of the Basic Law.
64. Art. 23 (1) of Proclamation No. 250, 2001.
65. Borowski, Human Rights in the World n. 83, at p. 174.
66. The case was submitted to the CCI by the Islamic Affairs Supreme Council in October 1999 and decided by the CCI on 17 January 2001. 88. Art. 34 (5) states: This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute.’ And Art. 78(5) partly provides: 'Pursuant to sub article 5 of art.34the HOPR and State Councils can establish or give official recognition to religious and custom-ary courts.’
67. Art. 13 para. 8(a) of the Law on Federal Constitutional Court (1958). 90. On the attainment of 18 years of age to vote (Art. 38 (1) (b) of the Constitution); to be an Ethiopian, reside within the constituency, for at least two years (Art. 19 of Proclamation No. 111/1995); and for one to be a candidate, he must be an Ethiopian, of 21 years or more in terms of age and a regular residence of the constituency of his intended candidature, for, at least five years as well as knowledge of the vernacular of the national region. See Art. 38 of Proclamation No. 111/1995, Proclamation to make the Electoral Law of Ethiopia conform with the Constitution of the Federal Democratic Republic of Ethiopia, Negarit Gazeta, TGE, 54th Year No. 9, Addis Ababa, 23 February 1995.
68. For the notion of framework powers see n. 31 above. 92. Proclamation No. 89/1997, Federal Rural Land Administration Proclamation, Federal Negarit Gazeta, 3rd Year No. 54, Addis Ababa, 7 July 1997. As a result, it seems to have fallen into the category of frame work legislation. This is perhaps one instance indicating that in some fields the Constitution has expressly empowered the state executive to administer federal laws like the cases in Switzerland and Germany, although it is not a common practice.
69. Arts. 5 and 6 of Proclamation No. 89/97 state some general conditions that the state law should comply with. It specifically requires the state law to comply with federal environmental policy, should respect women’s right, regulates about the payment of compensation, and guar-antees rights of the holder. 94. M. Jain, Indian Constitutional Law, 4th edn. (Nagpur, Wadhwa and Co. 1998) p. 280; of course federal parliament can easily enact it.