Browsing by Author "Assefa, Getachew (Associate Professor)"

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    The Constitutional Status of Upward Power Delegation in Ethiopia: the case of large scale agricultural land administration power
    (Addis Ababa University, 2018-01) Mideksa, Kelemework; Assefa, Getachew (Associate Professor)
    Vertical intergovernmental delegation manifests in several federations. Vertical intergovernmental delegation comprises both downward delegation from federal to regional government and inversely from constituent units to the central government. Most federations exercise downward power delegation. However, it is hardly possible to find a federal system which has well-developed practice of upward constitutional power delegation. According to Article 50(9) of the FDRE Constitution, the federal government has the power to delegate some of its constitutional competences to regional states when that is deemed necessary. However, the Constitution is silent regarding upward power delegation. As per Articles 51(5) and 55(2)(a) of the FDRE Constitution, the power to enact laws for “utilization of land and other natural resources” has been given to the federal government. Pursuant to Article 52(2)(d) of the FDRE Constitution, the power to administer land is entrusted in regional states. Regional states started to delegate land administration power over large scale agricultural investments in 2008. This thesis argues upward power delegation has no constitutional basis in Ethiopian federation. In the first place, there is no constitutional provision which empowers regional state governments to delegate power to the federal government. Furthermore, the Constitutional Assembly rejected upward power delegation proposal included in the draft constitution while adopting the constitution. Thirdly, the FDRE Constitution adopts a mechanism for transfer of power from regional states to the federal government, that is only with the blessing of the HoF. In other words, delegation is not a constitutional means to transfer regional states’ competence to the federal government.
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    Human Rights of Exogenous Ethnic Minorities in the Federal Democratic Republic of Ethiopia (The Case of Harari People’s State)
    (Addis Ababa University, 2010-01) Tsegaw, Endaweke; Assefa, Getachew (Associate Professor)
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    Individuals“ Constitutional Complaints under the Ethiopian Constitutional Litigation System: The Law and the Practice.
    (Addis Ababa University, 2018-02) Amare, Abraham; Assefa, Getachew (Associate Professor)
    This thesis is aimed to focus on comparative perspective of Individuals’ Constitutional Complaints in general view of different countries of the world and their different legal mechanisms, as well as it is, particularly, intended to point-up on Ethiopian current Individuals’ Constitutional direct access to complaints and the procedural system. Most of the time the countries’ experiences evidenced that their differences lied on their legal system which means, obviously, the common law legal system or the continental or civil law legal tradition. Their differences also are positioned in their political and constitutional culture of both sides. But, surprisingly, in some countries’ practices it could find out that merged or fused or modified kind of constitutional litigation system. There are also other kinds of models out of these two above mentioned that their Constitutional Adjudication systems are organized, for example, in their Constitutional Council, Second Chamber or the National Council, Parliament or specialized parliamentary bodies, etc. The author of this thesis really impressed to the Individual Constitutional Complaints (ICC) either experiences of the constitutional court or the amparo proceeding of judicial review of constitutional rights. The third alternative, the focal point of this writing is, to which its constitutional jurisdiction is existed under the parliament or the Upper House or the House of Federation (HoF) or some say it the Second Chamber. The FDRE constitution furnished a power to the House of Federation to interpret the constitution. It stated that the House has the power to interpret the Constitution.1 Thus, the Ethiopian new constitutional system emerging a newfangled experience that is neither a constitutional court’s nor a supreme court’s judicial review jurisdiction of constitutional interpretational mechanism. As it is attempted to highlight above, the purpose of this research paper doesn’t mean to show the constitutional adjudication system merely, instead this Research Paper deliberately to focus on and to shin out the Individuals’ Constitutional Complaints system of the Ethiopian contemporary legal and practical experiences. Indeed, the constitutional adjudication or constitutional review arrangement of one country is strictly interrelated with the subject matter of this thesis. For the rationale of the Individuals’ Constitutional Complaints system of the Ethiopian contemporary legal and practical experiences, this thesis is organized into four main chapters. Chapter one deals with the introduction, chapter two focuses on comparative aspects of other countries experience of ICC, chapter three discusses the Ethiopian current legal and practical arrangements with regard to ICC and chapter four encompasses with conclusion and recommendations.
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    The Jurisprudence of the Council of Constitutional Inquiry and of the House of Federation on Property Related Claims: A Critical Study
    (Addis Ababa University, 2018-01) Abajebel, Habib; Assefa, Getachew (Associate Professor)
    This paper aims to examine the interpretative and methodological approaches used by the CCI and the HoF in resolving property related constitutional issues. There are increasing number of property related claims reaching the Council and the House. Of the complaints lodged before the CCI/HoF, a good proportion has to do with land related property claims. This research has found out that decisions on property rights by government officials generally fail to adhere to the letters and spirit of the Constitution. By employing doctrinal and case analysis methods of research, this paper conclude that the property-rights related jurisprudence of the Council and the House has not yet developed. Key words: Constitutional interpretation, Constitutional review, Decision, Due process of law, Duration laps rights, Effect, Enforcement, Expropriation, Jurisprudence, Property, Proportionality, Public purpose, Public interest, Recommendation, Taking.
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    Methods of Constitutional Interpretation in Constitutional Dispute Settlement in Ethiopia
    (Addis Ababa University, 2010-01) Nasser, Mustefa; Assefa, Getachew (Associate Professor)
    The gist of constitutional interpretation is maintaining supremacy of the constitution. Yet, constitutional interpretation invariably involves complex questions having equally competing but conflicting socio-politico-legal dimensions and choices. Finding a viable and constitutionally appealing way out from the web of these three-dimensional issues obviously requires a sound background of constitutionalism and knowledge of appropriate principles of constitutional interpretation. In this regard the FDRE Constitution offers little guidance on how the constitution should be interpreted where the need arises, except for fundamental rights and freedoms specified in chapter three of the constitution. The general reference to international instrument in the interpretation of fundamental rights and freedom does not help much if it is not specified. Apart from the constitution Proclamation No. 251/2001 authorizes HoF to identify, develop and implement principles of constitutional interpretation as it deems appropriate. However, constitutional interpretive principles have not developed yet by HoF. Hence, lack of constitutional interpretive principles/methodology result in lack of consistency and predictability of how the constitution is interpreted as well as the outcome of the decisions itself. The research contends that the Ato Ashenafi Amare et al vs. the Ethiopian Revenues and Customs Authority (ERCA) case and Coalition for Unity and Democracy (CUD) vs. Prime Minister Meles Zenawi Asres cases would have been decided in a more consistent and rational manner, had they been analyzed by employing proportionality and balancing analysis method of interpretation. Hence, this research argues that apart from the existing interpretive methodologies that the CCI\HoF is applying, proportionality and balancing method of analysis could transform the interpretive mandate of CCI\HoF in the event of possible limitation of fundamental rights and freedoms occurs. It analyzes in a case by case basis the legality and legitimacy of the action where legality refers to the requirement that the limitation to be ‘prescribed by law’ where as legitimacy refers to the requirements of proportionality which has three criteria (suitability, necessity and proportionality). Therefore, HoF should adopt proportionality and balancing method of analysis as one of its constitutional interpretive methods. Key Words: principles of constitutional interpretation, balancing, proportionality, suitability, necessity, supremacy of constitution
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    The Need to Reform Electoral Law of Ethiopia
    (Addis Ababa University, 2018-06) Gashaw, Gezahegn; Assefa, Getachew (Associate Professor)
    The existence of modern state established on the basis of full participation of the people, political actors and the will of the people. The component and the realization of democracy addresses voters, candidates and political parties shall exist to run election. The forgoing three components shall have a game to play their role. This game must be complemented with electoral laws. Therefore, electoral laws are the game that displays the parties on the will of the people. Having the above in mind, this paper fully devoted in addressing electoral laws and what matters to be embodied under those electoral laws to conduct the election. International electoral principles and domestic electoral laws were evaluated in a critical manner to get experiences, to identify the gaps in accordance with the benchmark of different countries. The discrepancies under Federal Democratic Republic of Ethiopia(FDRE) Constitution and the subsequent effective legislation of electoral law, electoral system, electoral management bodies, electoral principles, electoral constituency and party system were carefully denoted were described article by article. Finally, discrepancies were critically picked and substantiated to show the need to reform electoral law of Ethiopia. Key words: Election, electoral system and electoral management bodies.
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    Self-Administration of Indigenous Nationalities of Benishangul Gumuz State of Ethiopia: Challenges and Prospects
    (Addis Ababa University, 2010-05) Nigusse, Mulugeta; Assefa, Getachew (Associate Professor)
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    Unconstitutional Change of Government in Africa and AU’s Response: The Case of Egypt
    (Addis Ababa University, 2018-01) Tolera, Solomon; Assefa, Getachew (Associate Professor)
    Unconstitutional change of government under AU norms refers not exclusively to Coup D’état-the sudden overthrow of a government, but it also encompasses the subversion of a democracy as expressed by the will of the people through election, refusal to relinquish power after losing election, and manipulating the supreme lawthe constitution, in order to extend the incumbency of serving government. Coup d’état is by far the most challenge to the continuity of regimes and has been a source of political instability in Africa. Though the 1990s and 2000s witnessed a decrease in the number of military Coup d’état, the coup d’état phenomenon still looms over African continent. The 2013 Coup d’état in Egypt by Field Marshal Adel Fatah Al-sisi, now a President, against elected President Mohamed Morsi, is a living proof. To combat unconstitutional change of government including coup d’état, the African union (AU) and its predecessor, the Organization of African Unity (OAU) has begun to articulate a Policy on unconstitutional change of government in 1997. Since then AU has adopted a robust of legal instruments on unconstitutional change of government. However, in practice, the OAU/AU/ response to the phenomenon lack consistency and uniformity. Thus, this thesis aims at briefly examining the existing OAU/AU legal regime on unconstitutional change of government. It will then investigate OAU/AU’s response to unconstitutional change of government delving into the consistency of the response. In considering these issues, the thesis examines the response of the African Union to the 2013 Coup D’état in Egypt, in which AU Reinstated Egypt’s membership on June 17, 2014, though constitutional order was/is not restored formally. The thesis concludes by arguing that AU’s response to unconstitutional change of government is paradox to its legal norms. Key words : African Union, Unconstitutional Change of Government, Norm, Coup D’état, Egypt.