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«JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS IN THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA BY Amare Tesfaye December, 2010 Addis Ababa, Ethiopia ...»

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ADDIS ABABA UNIVERSITY

SCHOOL OF GRADUATE STUDIES

JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS IN

THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA

BY

Amare Tesfaye

December, 2010

Addis Ababa, Ethiopia

www.chilot.me

JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS IN

THE FEDERAL DEMOCRATIC REPUBLIC OF ETHIOPIA

By Amare Tesfaye Advisor Wondmagegn Tadesse (LL.B, LL.M) A Thesis Submitted to the School of Graduate Studies of Addis Ababa University in Partial Fulfillment of the Requirements for the Masters of Law (LL.M) in Human Rights Law Stream www.chilot.me Approval Sheet by the Board of Examiners Justiciability of Socio-Economic Rights in the Federal Democratic Republic of Ethiopia Approved by Board of Examiners ________________________ _______________ ________________

Advisor Signature Date _______________________ _______________ ________________

Examiner Signature Date ________________________ _______________ _______________

Examiner Signature Date www.chilot.me

DECLARATION

Amare Tesfaye, hereby declare that this research paper is original and has never been presented in any other institution. To the best of my knowledge and belief, I also declare that any information used has been duly acknowledged.

Name: Amare Tesfaye

Signature:

This dissertation has been submitted for examination with my approval as University

advisor:

Advisor: Wondmagegn Tadesse (LL.B, LL.M)

Signature:

i www.chilot.me

Table of contents

Pages DECLARATION

Table of contents

ACRONYMS

ACKNOWLEDGMENTS

ABSTRACT

CHAPTER ONE

INTRODUCTION AND OVERVIEW OF THE STUDY

1.1. Introduction

1.2. Background of the Study

1.3. Statement of the Problem

1.4. Objectives of the Study

1.5. Scope of the Study

1.6. Research Methodology

1.7. Significance of the Study

1.8. Limitation of the Study

1.9. Organization of the Study

CHAPTER TWO

CONCEPTS AND CONTROVERSIES INVOLVED IN THE JUSTICIABILITY OF

SOCIO-ECONOMIC RIGHTS

2.1. Introduction

2.2. Challenges to Justiciability of Socio-Economic Rights

2.2.1. Challenges to Justiciability Associated with Nature of Socio-Economic Rights............ 13 2.2.1.1. The Positive Nature of Socio-Economic Rights

2.2.1.2. Resource Demanding Rights

2.2.1.3. Vague and Imprecise Normative Content

2.2.1.4. Progressively Realizable Rights

2.2.2. Challenges to Justiciability of Socio-Economic Rights Associated with Legitimacy of the Judiciary

2.2.2.1. Violation of the Doctrine of Separation of Power

2.2.2.2. Issues of Political Legitimacy

ii www.chilot.me 2.2.3. Challenges to Justiciability of Socio-Economic Rights Associated with Competency of the Judiciary

2.3. The Nature of State Obligations Regarding Socio-Economic Rights

2.3.1. Categories of State Obligations

2.3.1.1. Obligation to Respect, Protect, Promote and Fulfill

2.3.1.2. Obligation of Omission and Commission

2.3.1.3. Obligation of Conduct and Result

2.3.1.4. Immediacy and Progressive Realization

2.3.2. Minimum Core Obligations

2.3.3. Retrogressive Measures

2.4. Conclusion

CHAPTER THREE

THE PROTECTION OF SOCIO-ECONOMIC RIGHTS IN THE FEDERAL

DEMOCRATIC REPUBLIC OF ETHIOPIA

3.1. Introduction

3.2. The Normative Framework for Socio-Economic Rights in Ethiopia

3.2.1. The 1995 FDRE Constitution

3.2.1.1. Socio-Economic Rights in the Substantive Part of the Constitution

3.2.1.2. Socio-Economic Rights in the National Policy Principles and Objectives

3.2.2. International Human Rights Instruments

3.2.3. Ordinary Legislations

3.3. Institutional Frameworks for Socio-Economic Rights in Ethiopia

3.4. The Legal Status of Socio-Economic Rights in Ethiopia

3.4.1. Modalities of Constitutionalization of Socio-Economic Rights

3.4.1.1. Exclusion of Socio-Economic Rights in the Constitution

3.4.1.2. Inclusion of Socio-Economic Rights as Directive Principles of State Policy

3.4.1.3. Inclusion of Socio-Economic Rights in the Substantive Part of the Constitution.................. 60 3.4.1.4. Modalities of Constitutionalizing Socio-Economic Rights in Ethiopia

3.4.2. The Formulation of Socio-Economic Rights in the Constitution

3.5. Level of Protection of Socio-Economic Rights in Ethiopia

3.6. Nature of State Obligations Regarding Socio-Economic Rights in Ethiopia............ 65 3.6.1. Obligation to Enforce

3.6.2. Progressive Realization and Retrogressive Measures





3.7. Limitations in the Exercise of Socio-Economic Rights in Ethiopia

3.8. Conclusion

iii www.chilot.me

CHAPTER FOUR

JUSTICIABILITY OF SOCIO-ECONOMIC RIGHTS IN THE FEDERAL DEMOCRATIC

REPUBLIC OF ETHIOPIA

4.1. Introduction

4.2. Kinds of Justiciability of Socio-Economic Rights

4.2.1. Indirect Justiciability of Socio-Economic Rights

4.2.2. Direct Justiciability of Socio-Economic Rights

4.3. Elements of Justiciability of Socio-Economic Rights

4.3.1. The Claim Element of Justiciability

4.3.2. The Setting Element of Justiciability

4.3.3. The Consequence of the Claim Element of Justiciability

4.4. Justiciability of Socio-Economic Rights in Ethiopia

4.4.1. Justiciability of Socio-Economic Rights in the Substantive Part of FDRE Constitution 89 4.4.2. Justiciability of Socio-Economic Rights in the NPPO of FDRE Constitution................ 99 4.4.3. Justiciability of Socio-Economic Rights in Ratified Human Rights Instruments......... 101

4.5. Benefits of Justiciable Constitutional Guarantee of Socio-Economic Rights.......... 108

4.6. Jurisprudence of Justiciability of Socio-Economic Rights in Ethiopia

4.7. Role of Indirect Justiciability in Enhancing Direct Justiciability of Socio-Economic Rights in Ethiopia

4.8. Conclusion

CHAPTER FIVE

CONCLUSIONS AND RECOMMENDATIONS

5.1. Conclusions

5.2. Recommendations

5.2.1. Promotional Measures

5.2.2. Take Measures to Allow Procedure of Actio-Popularis in Human Rights Litigation... 126 5.2.3. Legislative Measures

5.2.4. Enhancing Direct Justiciability of Socio-Economic Rights through Indirect Approach127 BIBLIOGRAPHY

–  –  –

ACRWC African Charter on the Rights and Welfare of the Child CCI Council of Constitutional Inquiry CEDAW Convention on the Elimination of All Forms of Discrimination Against Women CERD Convention on the Elimination of All Forms of Racial Discrimination CESCR Committee on Economic, Social and Cultural Rights CRC Convention on the Rights of Child CUD Coalition for Unity and Democracy DPSP Directive Principles of State Policy ECHR European Court of Human Rights EHRC Ethiopian Human Rights Commission FDRE Federal Democratic Republic of Ethiopia ICCPR International Covenant on Civil and Political Rights ICESCR International Covenant on Economic, Social and Cultural Rights ICJ International Commission of Jurists ILO International Labor Organization NGOs Non-Governmental Organizations NPPO National Policy Principles and Objectives SERAC Social and Economic Rights Action/Center for Economic and Social Rights UDHR Universal Declaration of Human Rights

–  –  –

First and above all, I would like to thank the Almighty God and His Mother St. Vergin Marry for their help in my entire life. It is their help that gives me strength to accomplish every thing I wish.

Next, this research would not have been written without the assistance and support of a number of people, of whom there are too many to list here. I had the privilege to be supervised by Ato Wondmagegn Tadesse. I have received invaluable guidance from him.

I am extremely grateful for his tireless efforts in supervising this research paper despite his busy schedule. His invaluable scholarly advice, insightful comments and willingness to share the vast knowledge he has in the area coupled with comprehensive critiques of the various drafts, meticulous attention to detail, painstaking editing and constant support were all invaluable to the completion of this research. All errors and omissions remain mine alone. My examiners, Sisay Alemahu (Phd.) and Mizanie Abate (Phd. Candidate), gave me very helpful suggestions with regard to the final version of this work. So, they deserve my heartfelt thanks.

I am greatly indebted to my brother Mr. Gashaw Tesfaye and his wife Miss Mirkat Bizuayehu for their inviolable help and assistance. They are always there for me to solve my financial problems and other constraints confronting me in my entire life till now. I would like to extend my heartfelt appreciation for all they have done for me, because without their sacred effort to help me, I might not have this chance of being an LL.M candidate.

I am also grateful to the help of my family, particularly to my father Mr. Tesfaye Chekol and my mother Asmir Mersha, towards all my accomplishment. It is their love and pray that save me from danger and gives me strength. My thanks also extend to my lovely brothers Samson Gashaw, Nega Tesfaye, and Abraraw Yeniesew and my sisters Enaniye Tesfaye and Alemnesh Tesfaye.

I am also indebted to all of the participants of this research, who have taken time to discuss my ideas and/or given me access to invaluable information, without their help I

–  –  –

I appreciate the cooperation of all my friends for their constant support throughout the last few years. In particular, friends and colleagues at the University of Addis Ababa have been a source of invaluable help and support. Awet Halefom, G/Meskel Hailu, Honelign Hialu and Esmael Ali have provided me invaluable assistance in my stay at the AAU Law School. Their commitment to make the law school more colorful and memorable deserves my thanks.

I am particularly indebted to Ministry of Education of FDRE for its generous financing of my entire LL.M study.

Last but not least, I would like to thank Betelhiem Birhanie, Gasha Yalew, Ayinachew Yohannes, Yirga-alem Kindu, Mamey Birhanie, Zenebech Worku, Sefialem Zerie, and Nigusie Belete for their constant encouragement and generosity.

–  –  –

Civil and political rights have for years received, both at the international and national levels, much more prominence than socio-economic rights. Ethiopia is no exception in this regard. It is safe to state that, in the realm of civil and political rights, much has been achieved in Ethiopia. Many people freely exercise and enjoy the fundamental rights and freedoms recognized and protected in the Federal Democratic Republic of Ethiopian (FDRE) Constitution and ratified agreements, most of which are civil and political rights.

However, the same cannot be said for socio-economic rights. This is because in the existence of such situation in the country, there are not many cases of these rights entertained by the judiciary. In other legal systems, problems related to nature of socioeconomic rights, and legitimacy and competency of the judiciary in adjudicating these rights have impeded the judiciary’s efforts to enforce these crucial rights meaningfully. In order to explore why the adjudication of socio-economic rights under the Ethiopian legal system is under-developed, this research thus aims at examining and critically analyzing the justiciability of socio-economic rights in Ethiopia. Hence, the justiciability of socioeconomic rights in the FDRE Constitution and ratified agreements is analyzed from the perspective of the three normative pre-conditions of justiciability consisting of: claim, setting and remedy elements of justiciability. Accordingly, this research argues that socio-economic rights can be enforced both directly and indirectly in Ethiopia. While the direct way would be grounded on the provisions of substantive part of the Constitution and ratified treaties, the indirect way would be grounded on the provisions found in the National Policy Principles and Objectives of the Constitution as well as cross-cutting rights. Therefore, Ethiopian courts should adjudicate socio-economic rights.

Key Words: Adjudication; Claim; Ethiopia; Justiciability; Remedy; Setting; Socioeconomic rights

–  –  –

INTRODUCTION AND OVERVIEW OF THE STUDY

1.1. Introduction Socio-economic rights relate to an individual social, economic and cultural entitlements, which have been recognized at the international level since the adoption of the Universal Declaration of Human Rights (hereinafter ‘UDHR’) in 1948.1 It consists of the right to work, right to social security and social insurance, right to an adequate standard of living including food, clothing, housing, and to continuous improvement of the standard of living, right to health, and the right to education, among others.



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