Institute of Federalism and Legal Studies

Department of Comparative Public Law and Good Governance

Amendment of State Constitutions in Ethiopia in Comparison With

Other Federations

Set by:

Mequanint Dubie

Advisor:

Solomon Nigusie (Ph.D and Associate professor)

June, 2015

Addis Ababa, Ethiopia

Institute of Federalism and Legal Studies Department

of Comparative Public Law and Good Governance

Amendment of State Constitutions in Ethiopia in Comparison With

Other Federations

Set by:

Mequanint Dubie

Advisor:

Solomon Nigusie (PhD and Associate professor)

Submitted To: ECSU Institute of Federalism and Legal Study Department of

Comparative Public Law and Good Governance in Partial Fulfillment of the

Requirement of Degree of Masters in Comparative Public Law and Good

Governance

June, 2015

Addis Ababa, Ethiopia

i

Declaration

I declare that ‘Amendment of state constitutions in Ethiopia in comparison with other federations’

is my work and has not been submitted for any degree at any other university or academic

institutions. All sources and materials used are duly acknowledged and are properly referenced.

Mequanint Dubie

Signature…………………………. Date…… /……… /………..

This thesis has been submitted for examination with my approval as the University advisor:

Advisor: Solomon Nigussie (PhD and Associate professor)

Signature…………………………. Date…… /……… /………..

ii

Approval

The undersigned certify that they have read and recommended to the Ethiopian Civil Service

University to accept the thesis submitted by Mequanint Dubie entitled ‘Amendment of state

constitutions in Ethiopia in comparison with other federations’ in Partial Fulfillment of the

Requirements for Masters of Laws (LLM) Degree in Comparative Public Law and Good

Governance.

By: Mequanint Dubie

Approved by Board of Examiners

Advisor and Department Head: Solomon Nigussie (PhD and Associate professor)

Signature………… Date…… /……… /………..

Examiner: Mohamed Abdo (PhD)

Signature…………… Date…….. /……….. /…………

Director of IFLS: Solomon Abaye (PhD)

Signature…………… Date…….. /……….. /…………

iii

Acknowledgment

Mere words are inadequate to express my gratitude and debt to those whose support and counsel

have made this work all the better, despite the current invisible but the prospective visible flaws I

have added to it. The most impressive and consecutive contribution came from my advisor Dr.

Solomon Nigussie (Associate professor of ECSU), who tirelessly read the draft of the paper and

provided insightful comments. The whole part of the study restructured in line with his comment.

My sincere gratitude goes to Ato Worku Mola (North Gonder High Court Presidents) for his moral

and material contributions so as to join the university and to finalize this study. I would also like to

thank my entire classmates; five individuals deserve special mention: Ferew Zewudie, Anwar

Muhamed, Taddese Demena, Antenehi Gezahagni, Derese Fentawu, Yonas Misganawu for

making my life simple and colorful in the campus. And my gratitude also extends to my sister

Tenaye Sisay and my best friend Tegegne Zewale for their tireless effort to my successes.

Lastly, my acknowledgment would not be complete without mentioning Selma Tesfaye who has

constantly been there for me throughout the challenging times; by editing and writing the research.

I appreciate and acknowledge her effort to make the paper perfect.

However, all errors and omissions of the findings and analyses rest solely on me.

Mequanint Dubie

ECSU, 2015

iv

Acronyms

FDRE Federal Democratic Republic of Ethiopia

HoF House of Federation, the second or upper chamber

HPR House of People’s Representatives

Pro. Proclamation

No. Number

SNNP Southern Nations, Nationalities and Peoples

UN United Nation

USA United State of America

v

Abstract

The quest of this study primarily focuses on the problems of ‘rules of amendment’ of the state

constitutions in Ethiopia; in comparison with the general jurisprudence and with experience of

other federations’. To search these problems of the state constitutions, literature survey from

primary and secondary sources has conducted. And from the survey what was conducted, the

researcher found out that: Leaving constitutional space to sub national units so as to frame their

constitutions is an invariable practice across most federations. While, because of fallible, but

capable of learning from experience, human nature; change in the environment within which the

political system operates and change in the values and attitude of the society; the constitution of

each sub national units are not and will not ever be complete. This gap will be progressively filled

by political actors through amending the existing constitution. With regard to amendment of state

constitutions there are theories which had been theorized by constitutional scholars, models

derived from the theories and principles, limitations and procedures those have to meet by

political actors at the time of amendment of the state constitutions. But the fundamental fact about

sub national constitutional amendment is that, there is not optimal theory, model and principle and

no clear set of rules matching with every people’s interest. Due to this, sub national constitutions

across the world embodied their own theories, models, principles, limitations and procedures

which are appropriate to reflect economical, political and social reality of their people.

Similar with other federations sub national units in Ethiopia had been attempting to set their own

‘rules of amendment’ and these rules of amendment comprised theories, models, principles,

limitations and procedures which are fit in reflecting the existing situation and local realty of the

peoples of sub national units. Even though framer of sub national constitutions tried to set the

‘healing rules of amendment’ under each state constitution, it is not faultless as it is expected. The

faults which are viewed under each state constitution includes: the rules of amendment of some

state constitutions are defective in providing the opportunities to participate in the amendment

process to all interested groups and are not set in the way to safeguard the rights of minorities live

in the state. Though all state constitutions tried to provide special entrenchment to some provision

of the state constitutions and to the ‘rules of amendment’ itself, the entrenching provision itself is

not entrenched, in a sense that it will expose to the problems of double amendment. With regard to

amendment of human and democratic rights all state constitutions have been trying to specially

entrench via making their amendment based on the rules of amendment of the federal constitution,

but this is against the autonomy of the state; fail to comply with the principles of democracy and

limits the opportunities for the states to provide better protection of human and democratic right

for their residence through amending their constitutions.

Thus, it is better to recommend that all state constitutions shall rearrange their rules of

amendment in the way to provide equal participation to all interesting groups in the process of

amendment; shall reduce the problems of double amendment by entrenching their rules of

amendment and the entrenching provision itself. With regard to amendment of human and

democratic rights: all state constitutions shall avoid unnecessary self- restrictions spelled within

their ‘rule of amendment’.

vi

Table of Contents Title Page

Declaration ....................................................................................................................................... i

Approval ......................................................................................................................................... ii

Acknowledgment ........................................................................................................................... iii

Acronyms ....................................................................................................................................... iv

Abstract ........................................................................................................................................... v

CHAPTER ONE ........................................................................................................................... 1

INTRODUCTION......................................................................................................................... 1

1. Backdrops of the study................................................................................................................ 1

2. Statement of the problem ............................................................................................................ 3

3. The research questions ................................................................................................................ 4

4. Objectives of the study................................................................................................................ 4

5. Significance of the study ............................................................................................................. 5

6. Research Methodology .............................................................................................................. 5

7. Scopes and Structure of the study .............................................................................................. 5

CHAPTER TWO .......................................................................................................................... 7

2. THEORIES, MODELS, PRINCIPLES, LIMITATION, PROCEDURES AND REVIEW

OF STATE CONSTITUTIONAL AMENDMENT ................................................................... 7

2.1 Definitions and General Overview of Amendment and revisions of State constitutions...... 7

2.2. Theories and Models of States Constitutional Amendment ............................................... 10

2.2.1 Theories of state constitutional amendment ................................................................. 10

2.2.2 Models of sub national constitutional amendment ....................................................... 12

2.3 Guiding principles and limitation of formal amendment of sub national constitution ....... 13

2.3.1 Principles of formal amendment of state constitution .................................................. 14

2.3.2 Limitation of Amendment of State Constitution .......................................................... 15

2.3.2.1 Express limitations of state constitutional amendment .......................................... 16

2.3.2.2 Implied limitation of amendment of state constitution .......................................... 17

2.4 Procedures of formal amendment of state constitution ....................................................... 17

2.5 Review of amendment of state constitution ........................................................................ 18

vii

CHAPTER THREE .................................................................................................................... 20

3. AMENDMENT OF STATE CONSTITUTION IN OTHER FEDERATIONS ................ 20

3.1. Amendment of State Constitution in USA ......................................................................... 21

3.1.1 General background ...................................................................................................... 21

3.1.2 Guiding principles and limitation of Amendment of state constitutions in USA ......... 22

3.1.3 Procedures of amendment of state constitution in USA ............................................... 24

3.1.3.1 Initiation of amendment of state constitution ........................................................ 24

3.1.3.2 Adoption (Ratification) of Amendment of State Constitution ............................... 26

3.2 Amendment of State Constitutions in Australia .................................................................. 27

3.2.1 General background ...................................................................................................... 27

3.2.2 Principles and limitations on Amendment of states constitutional in Australia ........... 28

3.2.3 Procedures of Amendment of state constitution in Australia ....................................... 30

3.3 Reviews of state constitutional Amendment in USA and Australia ................................... 31

CHAPTER FOUR ....................................................................................................................... 33

4. AMENDMENT OF STATE CONSTITUTION IN ETHIOPIA ........................................ 33

4.1 General Backdrops of states constitutional Amendment in Ethiopia .................................. 33

4.2 Guiding principles and limitations for amendment of state constitutions under Ethiopian

federalism .................................................................................................................................. 36

4.3 Procedures of Amendment of state constitutions in Ethiopia ............................................. 38

4.3.1 Initiation of state constitutional amendment ................................................................ 39

4.3.1.1 Initiation for other provisions of the state constitutions ........................................ 39

4.3.1.1.1 Initiation through council of the states ............................................................ 39

4.3.1.1.2 Initiated by the council of the state executive ................................................. 40

4.3.1.1.3 Initiation via the ordinary Woreda or sub district (Kebele) councils .............. 41

4.3.1.1.4 Initiation via the council of special Zone or special Worda ............................ 42

4.3.1.1 Initiation for the Amendment of provisions on human and democratic rights ...... 43

4.3.2 Adoption of the amendment ......................................................................................... 44

4.3.2.1 Adoption of the amendment of other provisions of the state constitutions ........... 45

4.3.2.1.1 Adoption via state council alone ..................................................................... 45

4.3.2.1.2 Adoption with the separate vote of councils of the state and ordinary local

government (districts) .................................................................................................... 47

viii

4.3.2.1.3 Adoption via the cumulative votes of councils of the state, nationalities zone

special woreda and ordinary woredas ............................................................................ 50

4.3.2.2 Adopting the amendment of “rules for amendment” of the state constitutions ..... 51

4.3.2.3 Adopting the amendment of human and democratic rights ................................... 52

4.3.2.3.1 Adopting in line with the rules of Federal Constitution .................................. 53

4.3.2.3.2 Ratification of human and democratic right based on state rules of the

Amendment .................................................................................................................... 55

4.4 Review of amendment of state constitutions in Ethiopia .................................................... 56

Conclusion and Recommendations ............................................................................................... 57

Bibliography

1

CHAPTER ONE

INTRODUCTION

1. Backdrops of the study

With regard to amendment the founders of sub national constitution like James Madison and

others adopted originally John Locke’s principles. Locke said that the people can replace both

the government and its establishment document (the constitutions) but only when those

entrusted with the power of the government had first disqualified themselves by endangering

the happiness of the community to such a degree that civil society could be said to have

reverted to a state of nature.1 This principle was reflected in the first draft as well as on the

adopted constitutions of some states of USA.

Later Locke’s principle was resisted by other scholars like George Washington, Thomas

Jefferson and others. According to these scholars because the authors of the constitutions are

neither infallible nor prescient all constitutions shall be anticipating the need to change and the

existing generation cannot order the future generation so as to respect and abide its out date

and unfit constitutional principles.2 Based on the latter principle, all state constitutions of USA

had been framed in the way to heal their prospective evils through formal and informal ways of

amendment.

Informal amendment is a change in the meaning of the state constitution without a

corresponding change in the text and it will accomplish through constitutional interpretation,

shifts in political practice or convention or more provisional forms of constitutional

‘workaround’ by the political branches or Constitutional Desuetude. And it is the direct result

of rigidity of formal amendment rules in a sense that if the formal amendment of the state

constitutions is rigid, political actors will chose the informal ways of constitutional amendment

so as to cope up the needs of the existing generation.3

Formal amendment of the state constitution, which is the main quest of this research, on the

other hand is a textual constitutional alteration made in line with the ‘formal rules of

amendment’ spells out under each state constitution. These amendment procedures typically

1 Donald Lutz, Principles of Constitutional Design ( Cambridge University Press, New York, 2006) p. 150

2Sanford Levinson, Responding to imperfection (Princeton University Press1995 New Jersey) P.5

3 Rosalind Dixon, Constitutional amendment rules: a comparative perspective,( Edward Elgar P.L,2011) p.96

2

identify the individuals, institutions or bodies authorized to invoke the predetermined

democratic process to propose and subsequently seek ratification of an amendment to the

existing constitution. If the amendment process is successful, the new amendment will become

the part of the written constitutional order.4 [

Setting the ‘formal amendment rules’, which are neither malleable as the ordinary act of the

parliament nor impervious as the religious book, within sub national constitutions and healing

their evils based on these rules has a subsequent backdrop with the empowerment of sub

national government so as to frame their own constitutions. Globally including amendment

rules within sub national constitution begun by USA state constitutions’. The first new state

constitution in 1776 that of New Jersey contained an implicit notion of amendment, but the

1776 Pennsylvania document contained the first explicit amendment rules. By 1980 almost half

of the states of USA had amendment procedures with their own constitution and they had been

started healing their evils based on these procedures. After that in other federations like

Australian states include ‘rules of amendment’ within the text of their constitutions 5

When we come to Ethiopia, empowerment of sub national governments so as to amend their

constitution was begun to operate during 1952 when Eritrea federated with Ethiopia based on

UN general assembly declaration. According to Art.92 and 93 of the 1952 Eritrean constitution

the assembly had the power to amend the constitution of Eritreans but to enter into force ratified

by the Emperor was the mandatory requirement. The second movement for empowerment of sub

national units to frame their constitution was restarted by 1991 Transitional Chatter and it was

fully implemented by Pro.No7/1992. As stated under Art.15 (1) (a) of Pro.No.7/1992 each state

council had been empowered to make and adopt the state constitution. Based on this

empowerment Oromia and Tigray regional states adopted their state constitution before 1995.

Subsequently the adoption of the 1995 FDRE constitution reaffirmed this empowerment, in a

sense that the constitution under Art. 50 (5) empowered all states’ councils to adopt and amend

their respective state constitutions. In order to implement practically this provision of the federal

constitution, all regional states of Ethiopia had been adopted their constitutions in 1995 onwards.

4Rechard Albert, Non constitutional amendment, (Canadian journal of law and jurisprudence, University of

Western Ontario faculty of law 2009) Vol.xxII, No.1 P.12 5 Donald Lutz supra note 1 P.151

3

To heal when evil arises; all state constitutions, which were operational after 1995 and before

2001, had been set their own ‘rules of amendment’. But these rules of amendment were not too

much clear and all inclusive. In order to put right these defects and to achieve other objectives of

the states, all state constitutions had been massively revised from 2001 onwards. Under each

revised state constitutions an attempt has been made to frame their own rules of amendment and

in comparison with the previous one there is some enhancement, whereas in the view of the

general jurisprudence and with the reality existed among sub national constitutions, the rules of

amendment framed under each state constitutions is not without imperfection; thus, the perfect

and imperfect side of these rules of amendment will be the next theme of this study.

2. Statement of the problem

In states which are not used, their constitution as the window dress, having the rules of

amendment will be valued as the ‘lung’ of their constitution. This meant ‘rules of amendment’

invariably serve as the means to put right the defect of the state constitution and to update the

terms of the agreement governing the boundary separating the governed with its governor and

among the governed themselves. Owing to this, setting an outstanding amendment rule will be

the primary task of the framers of every state constitution. Yet devising an appropriate rule of

amendment is not easy. An over-rigid amendment may prevent or deter effects to strengthen the

state constitutional provisions. Weak amendment procedures may expose the constitution to the

danger of self-interested, partisan, destructive or short-term motive of amendment.

Due to this, in all federations, which provides constitutional space to their constitute units, the

framers of the state constitutions invariably faced with the challenge of setting an appropriate

rule of amendment. And the architectures of other federations’ sub national constitutions have

been attempted to reduce this problem by setting an appropriate ‘rules of amendment’ for each

sub national governments by taking into consideration the interest of the people governed and the

exited reality what they have experienced. Similar with the other federations the designer as well

as the framers of state constitutions in Ethiopia faced with the problems of providing the ‘healing

rules of amendment’ for each state constitution. Though the designer as well as framers of each

state constitution of Ethiopia attempted to frame the rules of amendment, these rules of

amendment are not free from problems, especially on participation of all interested groups,

4

protection of amendment rules from the problems of double amendment and on the amendment

of human and democratic rights.

3. Research questions

Keeping the general problems stated in the statement of the problem in mind, the study focuses

on the following questions.

What are the theory, model, principles and limitation of amendment of state

constitution?

How other federations’ sub national constitutional framers have been framed the

rules for the amendment of state constitution?

What are the imperfections faced in the amendment and ‘rules for amendment’ of

all revised state constitutions of Ethiopia?

Why the amendment process of some state constitutions is not all inclusive

and not designed in the way to safeguard the right of the minority recognized

in the same constitution?

Why ‘rules for amendment’ of all state constitutions are not self-protected

from the problems of double amendment through specially entrenching

themselves?

What is the end of including self-restricted procedures on the amendment of

human and democratic right in all state constitutions?

4. Objectives of the study

The invisiblity of sub national constitution in general ‘rules of amendment’ of state constitutions

in particular is an invariable problem among Ethiopian constitutional scholars. This is because

most of them think it is the verbatim copy of the federal constitution, whereas closer view of

each state constitution shows that their rules of amendment are not only distinct from its federal

counterpart but also there is no resemblance among the state constitutions themselves. Thus, this

study will have an objective

To show the existence of virgin areas for research to Ethiopian constitutional scholars.

Revealing the perfect and imperfect side of ‘rules for amendment’ framed under each

state constitution of Ethiopia in comparison with the general jurisprudence and with other

well experienced federations.

5

Generally, the major objective of this study is to help us understand about amendment of

state constitutions rather than layout guidelines for it; and to think about the amendment

of state constitutions project rather than direct us towards specific rules of amendment.

5. Significance of the study

State constitutions are instruments of sub national government to perform its duty in a well

planned manner. As times goes improvement of the content of sub national constitution will be

presumed. To do so having pre-existed knowledge about the ‘rules of amendment’ framed in

each state constitution will be the milestone for political actors. Consequently, this study will

have the following significances:

For every designer of amendment of state constitutions, political actors empowered to

amend the state constitution and constitutional practitioners so as to have pre-existed

knowledge about the perfect and the imperfect side of ‘rules for amendment’ of each

state constitution in Ethiopia.

It will come up with recommendation helps to upgrade ‘rules for amendment’ of each

state constitution in consistence with the existing constitutional reality.

It will serve as the footstep for constitutional scholars in order to dig the area deeply.

6. Research Methodology

This research paper will be based on theoretical analysis. For this theoretical insight a literature

survey both of the primary and secondary materials will be done. From the primary literature all

regional state constitutions of Ethiopia with their amendment if any, other laws which are

relevant to the issues and the constitution of other federations’ sub national government will be

served as an input to the quest. Secondary literatures like books, journals, articles presented both

from international and domestic conference will be enquired in detail. Both sources of data will

be analyzed via logical inference so as to arrive on certain conclusion and recommendation.

7. Scopes and Structure of the study

The constitution may change formally based on the procedure what is provided within the text in

advance or it may be change informally via the interpretation of the body empowered to interpret

it or through shifting political practice or more provisional forms of constitutional ‘workaround’

by the political branches. Both the federal and sub national constitutions may change via the

6

aforementioned way. After having some introductory explanation about the informal ways of

amendment of the constitution; formal amendment of sub national constitutions in Ethiopian in

comparison with other more experienced federations will be the central loci of this study.

Again under the Ethiopian legal system empowerment of sub national government so as to

amend their constitution was started in 1952 when Eritrea federated to Ethiopia and the other

movement towards empowerment of states to have their own constitutions was restarted by 1991

Transitional charter and it was fully implemented by Pro. No. 7/1992. Pursuant to Pro. No

7/1992 by which all regional states had been empowered to amend their constitution; similarly

the 1995 FDRE constitution reaffirms this empowerment. Based on this, all states adopted their

own constitutions in1995 onwards but because of some defect on the content; all states had been

revised their constitution in2001 onwards. Thus, though there may be some introductory remark

on the aforementioned area, the rules of amendment of all revised state constitution will be the

center of this study. Having this scope in mind, the study will be structured into four chapters. In

chapter one there is some introductory remark about the study, in chapter two it will have

detailed about theories, models, principles, limitations, procedures and review of states

constitutional amendment, in chapter three the paper will be revealed about amendment of the

state constitution in another federation and in the last chapter the study will focus on states

constitutional amendment in Ethiopia.

7

CHAPTER TWO

2. THEORIES, MODELS, PRINCIPLES, LIMITATION, PROCEDURES AND REVIEW

OF STATE CONSTITUTIONAL AMENDMENT

The constitution is not a static document; rather, as the time goes, it will be subject to

improvement so as to grasp the interest of the existing society. Thomas Jefferson under his letter

wrote to James Madison from Paris in1789 revealed about the dynamic nature of the constitution

by the following way.

The Earth belongs to the living, and not the dead and we seem not to have perceived that,

by the law of nature, one generation is to another as one independent nation is to another

and he asked that how can any constitution claim the authority to control later

generations? What possible justification can there be for allowing the dead hand of the

past to govern us today?6 And he added, framing the constitution impervious is similar

with ordering the man to wear the coat which had been fitted to him when he was a boy.7

From the aforementioned Jefferson’s concept of constitution we can induce that because the

authors of the constitutions are neither infallible nor prescient all constitutions has to be

anticipate the need to change and the existing generation cannot ordered the future generation so

as to respect and abide its out date and unfit constitutional principles. Whereas, when the

constitution of both federal as well as sub national constitution is amended it will not be done

similar to other ordinary legislation. With regard to how to amend the constitutions of

constituting units, there are theories, models, principles, limitation and procedures and the

amendment may be reviewed by the body which has been empowered to do so. Thus, under this

chapter, we will try to explore these concepts in detail.

2.1 Definitions and General Overview of Amendment and revisions of State constitutions

Constitutional scholars conducted both empirical as well as doctrinal research on the amendment

of sub national constitution while they had been unable to attain on similar conclusion on the

6 David A. Strauss, The living constitution, ( Oxford University Press in ,2010) p. 99

7 Dennis C. Mueller, Constitutional Democracy, (Oxford University Press, New York, 1996) p. I

8

definition of amendment of state constitution and its resemblance and difference with revision of

sub national constitutions.8

Among these writers G. Alen Tarr defined:

Amendment of state constitution is the alteration of an existing constitution by the

addition or subtraction of materials and revision is the replacement of one constitution

by another.9

This definition of Tarr is not clear whether the addition or subtraction or complete replacement

of sub national constitution is done through respecting the rules of amendment or rules of

revision framed within the state constitution in advance or informally like by constitutional

interpretation10; shifts in political practice or convention11 or more provisional forms of

constitutional ‘workaround’ by the political branches12.

To the contrary, some other constitutional scholars like Rosalind Dixon also agree that not all

forms of constitutional change in fact involve the process of constitutional amendment, properly

so-called. Though it is difficult to identify constitutional amendment from its alternatives, he

agreed that constitutional change by way of some processes such as by judicial interpretation,

shifts in political practice or convention or more provisional forms of constitutional workaround

by the political branches does not generally amount to actual constitutional amendment. And too

radical or all-encompassing constitutional change which is called revision of constitution is not

amendment since each of them follows different procedures. Rather, a constitutional amendment

is generally understood to require some kind of formal legal deposit in the text of a written

constitution13.

8 G.Tarr, Understanding state constitutions ( Princeton university press1991 ) P.20

9 G. Alan Tarr, supra note 8 p. 23

10Strauss, David Common Law Constitutional Interpretation, (University of Chicago Law Review 1996), Vol.

63:p.877–936. 11

Young, Ernest, The Constitution Outside the Constitution, (Yale Law Journal 2007), Vol.117: p. 408–73 12

Tushnet, Mark, Constitutional Workarounds, (Texas Law Review, 2009), Vol.87: p. 1499–516. 13 Rosalind Dixon, Constitutional amendment rules: a comparative perspective,( Edward Elgar Publishing Limited, Massachusetts,2011) p.96

9

The other writer called Richard Albert defined:

The constitution may be amended formally based on the rules of amendment or informally

without respecting the rule of amendment provided within the constitution.14 And amending

the constitution is only to make additions, deletions and other alterations that preserve the

constitution itself with no threat of offending the spirit or the principles of the constitution.

To revise, in contrast, is to affect major constitutional change to the polity. That means the

latter refers to fundamental changes to the constitution typically requiring more exacting

procedures than the former, which generally requires a lower amendment threshold and is

used for narrow, non-transformative adjustments.15

Based on the aforementioned scholastic arguments, one can conclude that amendment and

revision of the state constitution are the two different concepts and have a different legal effect.

Which refers that amendment will be done without affecting the four sides of the constitution,

whereas revision is the complete replacement of the constitution. Currently only twenty-three

state constitutions of USA framed different rules for amendment and revision of their respective

constitution, whereas other states’ constitutions within USA as well as in other federations’ sub

national constitutions including all Ethiopian state constitutions have no different legal

framework for amendment and revision of state constitutions.

Similarly, though, there is disagreement among constitutional scholars; most of them believed

that the constitution may be amended formally or informally.16 Informal amendment is a change

in meaning of the state constitution without a corresponding change in text, which refers the

alteration of constitutional meaning in the absence of textual change.17 And it is the direct

consequences of the difficulty of formal amendment of state constitution, because provide that

the formal amendment of the state constitution is difficult, political actors will change their

attention to informal ways of state constitutional amendment. The informal amendment of sub

national constitutions will be accomplished through interpretation of the constitution, action of

legislative or executive’s, shifts in political practice or convention or Constitutional Desuetude.

14

Richard Albert, Constitutional Disuse or Desuetude: The Case of Article V(Boston University Law Review 2014) Vol. 94:1029-1081 15

Richard Albert, Amending Constitutional Amendment Rules (Int. Journal of Constitutional Law2015) p.12 16

Gerken, Heather K, The Hydraulics of Constitutional Reform: A Skeptical Response to our Undemocratic Constitution (Yale Law School Faculty Scholarship Series, 2007). Vol.55 p.926 17

Ibid

10

Formal amendment in other ward is textual constitutional change made in conformity with the

rules of amendment entrenched in the text of the constitution.18And it is the correction/ repair or

improvement of the prior constitutional designed choice in light of the new information without

the repugnancy of basic values of the constitution based on the procedures of amendment framed

within the constitution in advance. For the formal amendment of sub national constitutions there

are principles, limitations and steps those have to be respected and abide by the body empowered

to amend the constitution. Through underlining the aforementioned ways of formal and informal

amendment of state constitution constitutional scholars tried to frame the theory and models of

state constitutional amendment.

2.2. Theories and Models of States Constitutional Amendment

In the process of state constitutional amendment there are theories which had been theorized by

constitutional scholars, similarly there are practice which are dramatically departing from the

theories of constitutional amendment. Based on the theories and the practice of constitutional

amendment writers had been framed the models of state constitutional amendment.

2.2.1 Theories of state constitutional amendment

With regard to the state constitutional amendment, there are convectional constitutional

amendment theory and non convectional constitutional amendment theory. Convectional

constitutional amendment theory advocates that state constitution has to be amended in line with

‘rules of amendment’ framed within its text.19 Switzerland cantons constitutions are the flag

bearer of this theory of sub national constitutional amendment. To the contrary, the proponent of

non convectional sub national constitutional amendment theory said that state constitution may

amend without abiding the rules of amendment provided within its text. This is called non

constitutional constitutional amendment. Non constitutional constitutional amendment can

further divided into unconstitutional, extra constitutional and anti constitutional constitutional

amendment.

Unconstitutional constitutional amendment promotes the sub national constitutional amendment

shall be done in conformity of the sprite and the rules of amendment of the state constitution. If

the amendment process of the state constitution contradict with the procedure of amendment

18 Rechard Albert supra note 4 p.22 19 Hans Kelsen, General Theory of Law and State, (Harvard University Press, 1945) p.259-60.

11

entrenched in the state constitution or the end result of the amendment is not confirm with the

sprite of the constitution then the body which is empowered to review the amendment of state

constitution will rendered decision against the amendment by stating that it is unconstitutional

constitutional amendment.20 Australians’ state constitutions are the flag bearer of this theory of

constitutional amendment. In the Australian state Supreme Court is not checking the consistency

of the amendment with the spirit of the constitution, but its consistent with the procedures of

amendment frame in state constitutions.21

Anti-constitutional constitutional amendment denotes that wholesale constitutional change that

seeks to transform the entire constitutional order through violent or nonviolent revolution. The

purpose of an anti-constitutional action is to undermine the constitutional order. It is qualitatively

different from an unconstitutional action on at least two grounds.22 First, an anti constitutional

action is decidedly antagonistic to the state, whereas an unconstitutional action does not

necessarily demand a hostile posture toward the state. Second, anti constitutionality often entails

some form of violent conduct in the pursuit of civil or political reorganization, perhaps even as

dramatic as revolution.

The other ways of non constitutional constitutional amendment is extra constitutional

constitutional amendment. This theory provokes that amendment of state constitution need not

necessarily conform to the amendment procedures commanded by the constitutional text.23 And

it is different from unconstitutionality and anti constitutionality because both of them orient

internally toward the text of the constitution or the spirit of the constitutional order, extra

constitutionality orients itself outwardly. Extra constitutional constitutional amendment relies on

strategies that derive their legitimacy from sources external to the text of the constitution. For

instance, actors undertaking extra constitutional constitutional change may make popular appeals

20

Aharon Barak, Unconstitutional Constitutional Amendments, (Israel Law Review, 2010), Vol. 44: 321, p.321; Young, Ernest, The Constitution outside the Constitution, (University of Texas press,2007) public law and legal theory research paper No. 119 p.38 21 Ibid p.327 22

Tofigh Maboudi , Bringing the constitution online: the struggle over Egypt’s new constitution, (American University, School of Public Affairs Washington, D.C.) p.5 23

David A. Strauss, The Irrelevance of Constitutional Amendments, (Harvard Law Review, 2001). Vol. 114:1457p.1464

12

to self-determination or may invoke divinity or natural law to legitimate their vision.24 All USA

state constitutions are the flag bearer of this theory of sub national constitutional amendment.

2.2.2 Models of sub national constitutional amendment

Having in mind the aforementioned taxonomy of theories on constitutional amendment scholars

have been derived and developed three models of constitutional amendment. These are political,

substantive and textual models of constitutional amendment. Rechard Albert ascertained that

These models are neither exhaustive nor mutually exclusive, by which it mean not only that

constitutional states may exhibit practices indicative of a fourth or nth constitutional amendment

model, but also that one constitutional state may exhibit amendment practices aligned with more

than one model and the three models of constitutional amendment mostly differ one from the

other because of the seat of sovereignty and the source of Legitimacy to the constitution.25

Textual models of constitutional amendment demand only that a constitutional amendment shall

meet the procedural requirements enshrined in the constitutional text. Which means, according to

this model of amendment in the normal course of affairs, a state will amend its constitution in

accordance with the constitutional amendment procedures spelled out in the constitutional text.26

These amendment procedures will typically identify the individuals, institutions or bodies

authorized to invoke a pre-determined democratic process to propose, and subsequently seek

ratification of, an amendment to the existing constitution. If the amendment effort is successful,

the new amendment will become part of the written constitutional order. In other word the

legality of the amendment will be decided based on the rule amendment entrenched within each

sub national constitution. Because of this, this model of amendment is the derivative of

constitutional constitutional amendment theory.27

Political models of constitutional amendment, on the other hand, envisions that state

constitutional amendment is the result of the dynamic and sustained interaction of the social

movement with elected officials. In other word according to this model of amendment either the

spirits of the constitution or the rules of the amendment written in the text of the constitution are

24 Ibid p.1461 25Rechard Albert, supra note 4 P.12 26 Ibid 27

Hans keelson, Supra note20 p.260

13

not the finite body of rules for amendment of state constitution.28 And it is the direct derivative

of extra constitutional constitutional amendment theories of USA state constitutions. Pursuant to

this model the sovereignty is seat on the people and the source of the legitimacy is not either the

rules of amendment or the substantive part of the constitution but the will of the people.29

And the last model of amendment of sub national constitutional amendment is substitutive

models of constitutional amendment. This model requires not only that a constitutional

amendment meet those constitutional textual procedures, but it also imposes an additional hurdle

that a successful constitutional amendment must clear: conformity with the existing constitution.

The model may reject the amendment of the state constitution even if it is done in conformity

with the rules of amendment entrenched within the constitution or it reflect the day to day

interaction of the society with the political actors via the body empowered to review the

amendment of state constitution.30 To sum up, this model rejects the two implicit propositions

that underpin the textual and political models: first, that constitutional amendment derive their

legality from process or politics; and second that there is an infinite universe of potential

constitutional amendments. The substantive model instead sets the constitution itself as the

limiting reagent for subsequent constitutional amendment. It is the derivate of the theory of

unconstitutional constitutional amendment and within this model, though there is constitutional

supremacy as a cloak, the ultimate sovereignty is seat on the judiciary and the source of legality

will be the constitution itself. State constitution in South Africa and Germany Lander’s

constitutions are the flag bears of this model of amendment.31

2.3 Guiding principles and limitation of formal amendment of sub national constitution

Formal constitutional amendment rules are the gatekeepers to the constitutional text. They detail

the procedures for changing the written constitution, specify what is subject to or immune from

formal amendment, promote deliberation about constitutional meaning, distinguish the

constitutional text from ordinary law and used to design constitutional values. In addition to this

they are especially useful for channeling popular will into institutional dialogue and checking

28

Young, Ernest ‘The Constitution outside the Constitution’, (Yale Law Journal 2007), VOL.117: p. 455 29

Rechard Albert, supra note 4 P.16 30

Yaniv Roznai, Unconstitutional constitutional amendments: a study of the nature and limits of constitutional amendment powers ( London school of economics and political science2014 unpublished PhD dissertation) p.176 31

Kemal Gözler , Judicial review of constitutional amendments a comparative study,( Ekin Press Bursa – 2008)p.22

14

informal constitutional amendments. Generally, by their very nature, formal amendment rules

reflect both faith and distrust in political actors: they simultaneously authorize political actors to

improve the constitution while limiting how and when political actors may do so.32

Given the many essential functions, formal amendment rules serve, we would expect

constitutions to entrench them; indeed most of them do so. However, significant controversy

remains over principles and limitations those has to be respected and abide by both the designers

of rules of amendment and the body which is empowered to amend the state constitution.

2.3.1 Principles of formal amendment of state constitution

The constitution, particularly sub national constitution is the dynamic document which intends to

convey that due to fallibility of their human author and the inevitable imperfections of their

handiwork sub national constitutions are always ready for amendment. Whereas this does not

mean that they will be amended without taking into consideration guiding principles of the sub

national constitutional amendment.33 The Experience, what it had before on the amendment of

state constitutions, suggests that the amendment of sub national constitutions shall be guided by

the following fundamental principles.

Proposing amendment via or out of the legislature: in most federations’ sub national

constitutions proposing the amendment through the legislator is an invariable practice and most

sub national constitutions had been successfully amended in this way, however, so as to keep its

political status quo legislators frequently resist change in the structure and process of the state

government. Thus, the framers of state constitution invariably try to avoid this blocking activity

of the state legislature through assigning, some constitutional matter to the body outside of it.34

The Necessity for and disadvantages of details: Sub national constitutions are often criticized

for being excessively detailed. Provisions for constitutional amendment that bypass the

legislature are frequently a locus of considerable of this detail since specificity is a means of

protection from legislatures often manifest hostility to the prospect of being bypassed in the

32

Rosalind Dixon, Supra note 13 P.98 33

Donald S. Lutz, Toward a theory of constitutional amendment Sanford Levinson(ed)Essay on Responding to imperfection (Princeton University Press1995) page237 34 Gerald Benjamin and Melissa Cusa, Constitutional amendment through the Legislature in New York, Essay on the New York state constitution ( temporary state commission on constitutional revision New York1996) p.55

15

restructuring of state government.35 In addition to this having detail on the constitutional

amendment will avoid unnecessary interpretation of the state constitution by the body

empowered to interpret the constitution. To the contrary, all subject matter in the constitution

shall not be provided with detailed since the constitution will be subject to frequent amendment.

Thus, when the framers of state constitution first designed the constitution or after adoption

during the amendment process they have to take into consideration the balance between the

having detailed and not detailed provisions of the state constitution.

Understand the political and practical dimension of the concerned state: It must be

recognized that state constitutional amendment takes place within a specific state’s political

system and hence its own, unique constitutional development. The involvement of politics in the

process is hardly surprising, and even though it may not be ordinary politics, thus, this political

dimension must be understood, taken into account and accommodated. Not only this, but also

the drafter of the amendment should aware; how the body which had been empowered to

interpret the state constitution interpret and enforce the contested state constitutional

provisions.36

Thus, both the framers and the subsequent designer of amendment of the sub national

constitution will be mandated so as to take into consideration the aforementioned principles with

the subsequent express and implied limitation of formal amendment of state constitutions.

2.3.2 Limitation of Amendment of State Constitution

The power to amend the constitution is not either constituent power or constituted power rather it

is in the middle of the two powers which is called secondary derivative constituent power. In

other words, making the federal constitution is constituent power and based the empowerment

given by the federal constitution the regional government will be framed their constitution that is

called primary derivative constituent power. The framer of the state constitution will also assign

to other institutions so as to amend the constitution when it is necessary based on the rules of

amendment framed within its text called secondary derivative constituent power. Thus, since it is

35 Gerald Benjamin, Constitutional amendment and revision Frank P. Grad and Robert F. Williams (ed), Essay on State constitutions for the twenty-first century, ( State University of New York, 2006) volume 3 p. 178 36

Frank P. Grad and Robert F. Williams ,State constitutions for the twenty-first century, volume1 ( State University of New York, 2006) p. 2

16

a secondary, derivative power, it is subject to express and implied limitations imposed by

constituent power and primary derivative constituent power.37

2.3.2.1 Express limitations of state constitutional amendment

Express limitation of amendment of state constitution is the restriction imposed on the power to

alter the state constitution either by the state constitution itself or by other supreme legal

documents.38 Which means, the power to amend the state constitution may expressly restrict

through the limitations imposed by the state constitution itself, federal constitution and

international treaties ratified by the federal government or by other laws enacted by the federal

government.39

With regard to the limitation imposed by the state constitution itself: abiding the rules of

amendment entrenched under the text of state constitutions is common across most federations’

constituent units. That meant in most federations, sub national constitutions prescribed that

formal amendment of state constitution shall be done in confirming to the ‘rules of amendment’

entrenched within the constitution. The state constitution may generally entrench the provision of

the constitution in one of three ways: ordinarily, specially or absolutely. Under ordinary

entrenchment, amendment rules or other provision of the constitution did not enjoy a greater

degree of entrenchment than any other constitutional provision. Whereas in special entrenchment

amendment rules or few provisions of the state constitution will be specially entrenched under

heightened amendment thresholds and lastly absolute entrenchment has happened when some

provisions of the constitution becomes unamendable. Thus the state constitutional amendment

shall do in line with these rules of amendment and their entrenchments.40

In addition to this, formal amendment of state constitution shall be done in line with the federal

constitution, international treaties ratified via the federal government and with the federal laws.

If the amendment is contradicted with the aforementioned document, thus it will be void.

37

Yaniv Roznai ,Supra note31 p.95 38

Yaniv Roznai, Unconstitutional constitutional amendments, the migration and success of a constitutional idea (the American journal of comparative law2013) Vol.61 p.661 39

Ibid p.662 40

Richard Albert, Inter temporality and constitutional change (Boston college law school juonary,2014) p.8 <http://www.jus.uio.no/english/research/newsandevents/events/conferences/2014/wcclcmdc/wccl/papers/ws16/w16-albert.pdf> last visit may 1,2015

17

2.3.2.2 Implied limitation of amendment of state constitution

To be fair, the aforementioned express limitations of amendment are not guaranteed to the effort

to defend the state constitution from retrogressive amendments; political actors may invoke

theories of implicit limits to formal state constitutional amendment. Writers in this area proposed

two types of implicit limitations to the amendment powers of state constitution. Each concerns

unamendability but it is operationalized in different ways. These limitations are the distinction

between amendment and revision and judicial constitutional review.41

Mostly amendment and revision of state constitution is not framed in separate provision within

the constitution, whereas both the amendment and revision have been done based on different

subroutine and have a distinct legal effect.42 Thus, this distinct nature of amendment and revision

will be the implicit limitation of amendment of state constitution. And the political actors cannot

amend the whole provisions or the basic identity of the constitution based on the procedures of

amendment.

The other implicit limitation of the amendment of state constitution is judicial constitutional

review. If the political actors are not aware of the difference between amendment and revision

thus the court may intervene in the process of amendment via reviewing the amendment of the

state constitution. The court may decide the amendment is done via changing the basic identity

of the constitution thus it is not constitutional since this will be brought about through revision.43

2.4 Procedures of formal amendment of state constitution

Invariably in most federations’ sub national constitutions there is the procedure on how to amend

the state constitution and this procedure has the initiation and adoption stage. Initiation is the first

step in the amendment of state constitution and it is the stage at which the amendment machinery

would be set in motion and the whole amendment processes of the state constitutions begin. To

enforce the newly emerged provision as the part of the state constitution, its ratification or

adoption by the body empowered to do so will be the most significant steps for the amendment

of state constitution. While in discussing these stage of the amendment of the state constitutions

the important questions that needs to be raised are; who has the power to initiate and adopt the

41

Richard Albert, Supra note4 p.13 42

See page .9 of this paper 43

Kemal Gözler supra note 32 p.88

18

amendment; what formal requirements are put up on those who or which are empowered to

initiate or adopt the amendment of state constitution will be the contested issue throughout the

federation.

Since both the initiation and adoption stage of the amendment of each state constitution is the

reflection of the past, present and the future situation of the concerned society, each sub national

constitution has been empowered different stakeholders for initiation and adoption and provides

different requirements those have to be meets during the process of amendment of state

constitution.44 With regard to the body which has been empowered to initiate the constitution,

some state assigned to the state legislative, constitutional convection, constitutional commission

to the local government, to the people directly.45 Others also assigned to the executive organs of

the government or to the court. Similarly adoption may be worked on via popular referendum,

joint or separate secession of the two houses of the state or separate decision of the local and

regional government.46

2.5 Review of amendment of state constitution

In the previous part of this study we have been revealed basic principles, express and implied

limitations of state constitutional amendment and the body which has been empowered to amend

the state constitution shall respect and abide these principles and limitations imposed on the

amendment power of the states. If the amendment power is limited; it will be lead to questions of

can such limitations are legally enforceable, in the sense that they are subject to substantive

review by the body which is empowered to do so. One can certainly make the claim that even if

the amendment power is limited, whether a particular amendment oversteps those limitations is

not a decision for the institution which has been empowered to interpret the constitution.

Constitutional limitations on the amending power would then constitute a rule without a legal

sanction (but perhaps with a political or social sanction) to prevent the amendment authority

from exceeding its limits.47

44Walter Fairleigh Dodd, The revision and amendment of state constitutions(John Hopkins press USA 1910) P.114 45

Frank P. Grad and Robert F. Williams. supra note36 P.197 46

John Dinan, Patterns and Developments in Sub national Constitutional Amendment Processes, available at http://www.fss.ulaval.ca/cms_recherche/upload/chaire_democratie/fichiers/article_dinan._27082009_160838.pdf access on May1,2015 47

Yaniv Roznai ,Supra note31 p.171

19

To the contrary, others argue, since the limitations of the amending power entrenched within

state constitution are similar to the other provision of the state constitution thus the body which

has been empowered to interpret the state constitution shall enforce and interpret these

limitations. The writers who support the latter argument provided their own rationale why the

amendment of state constitution has to be reviewed. These include the existence of separation of

powers: Even though both the power to amend the state constitution and the power to make the

state constitution is derivative constituent power, whereas the former is derived from the latter

and there will be vertical separation of power in between primary derivative constituent power

and secondary derivative constituent power. As the result the secondary derivative constituent

power of amendment shall respect limitations provided by its source primary derivative

constituent power of making the constitution. And this will be enforced by the body which has

the power to interpret the constitution.

The other rationale is the supremacy of the constitution: the constitution is made by the body

which has the primary derivative constituent power and amendment will be made by the body

which has been delegated by the maker of the constitution thus the delegate will not have the

power to overrules the prohibition made by the delegate if it over ruled it has to be void by the

organ which has the power to do so.48

With regard to the institution assigned to review the amendment of state constitution sub national

constitutions assigned to different bodies based on their local reality. It may be to the court or to

another institution. This may derive from the text of the state constitution or from the decisions

of the constitutional interpretative organ where the constitution is silent about the issue. The

institution may empower so as to review only amendments to ‘amendment rules’ or all

amendments or the distinction between amendment and revision after or before the adoption of

the amendment.49

48

Ibid p.175 49

Richard Albert, Supra note15 p.26

20

CHAPTER THREE

3. AMENDMENT OF STATE CONSTITUTION IN OTHER FEDERATIONS

Every federal system is structured by a federal constitution that divides power, establishes central

institutions, prescribes the rules for resolving disputes, safeguards rights, and provides a

procedure for its own alteration. In some federal systems, the federal constitution prescribes the

political institutions and processes for the country's constituent units as well, thus furnishing the

constitutional architecture for the entire federal system. That means the federal constitution does

not leave any constitutional space for its constituent units in order to make their constitution

based on their local reality. This is the case in Canada, Belgium, South Africa and India. If their

constituent units have no their own constitution, dealing about the amendment of sub national

constitutions under these federations will be worthless.

But in most federal systems, the federal constitution is an "incomplete" framework document in

that it does not prescribe all constitutional processes and arrangements. Rather, it leaves "space"

in the federal system's constitutional architecture to be filled by the constitutions of its sub-

national units, even while it sets parameters within which those units are permitted to act. Under

this category USA, Switzerland, Australian and Ethiopian federations are forefront example.

Under Switzerland federation each Cantons has its own constitution and to heal when evils arise

within each canton constitution, they set the ‘formal rules of amendment’. Whereas the rules of

amendment, political actors involved in the amendment process and the process of amendment

by itself is completely different to the amendment of state constitutions of Ethiopia. Thus, to the

writer's position Switzerland’s experience will not be more educative to quest the perfect and

imperfect side of Ethiopian state constitutional amendments.

With regard to amendment of state constitutions in USA and Australia, though there are some

procedures and process which make different their amendment of state constitution with

Ethiopian state constitutions, there are also more experiences which are common within the

two federations which will serve as an input to recommend the Ethiopian experience. Thus,

under this chapter, we will try to explore the experience of Australian and USA state

constitutional amendment in more exhaustive way.

21

3.1. Amendment of State Constitution in USA

3.1.1 General background

Amendment of state constitutions in USA has subsequent backdrops with the empowerment of

states to have their own constitution. Which means the first framers of state constitution of USA

believed with John Locke principles states that the people could replace government but only

when those entrusted with the powers of government had first disqualified themselves by

endangering the happiness of the community to such a degree that civil society could be said to

have reverted to a state of nature.50 Unless the government is endangering the happiness of the

society both the state constitution and the government is not changed but if it is endanger, it will

not be amended rather complete replacement.

Whereas, this principle later disproved by George Washington and Thomas Jefferson by stating

that humans being are fallible but capable of learning through experience and the constitution

shall be appropriate to adapt the changing circumstances of human life and this will be done

when the state constitution includes rules of amendment.51 Because of these reason the first new

state constitution in 1776 that of New Jersey contained an implicit notion of amendment, but the

1776 Pennsylvania document contained the first explicit amendment process one that used a

convention process and bypassed the legislature. By1780 almost half of the states had an

amendment procedure.52

Since the introduction of the first written rules of amendment of state constitution the procedures

of amendment and the stakeholders who had been taking part within the amendment process of

each state constitution had been developed in the way to reflect the needs of the existing

generation. Throughout this development of formal amendment rules of state constitutions;

though all state constitutions have the initiation and adoption (ratification) stage, the existence of

non resembling need of the governed in each state causes the adoption of different rules of

50

Donald Lutz, Principles of constitutional design ( Cambridge University Press, New York, 2006) p. 150 51. Letter of George Washington to Bushrod Washington, November 10, 1787, in Michael Kammen (ed.), The Origins of the American Constitution: A Documentary History (Penguin Books, New York 1986), p. 83. 52

Donald Lutz Supra note 51 p.150

22

amendment and providing an opportunities for the involvement of different stakeholders in the

amendment process.53

3.1.2 Guiding principles and limitation of Amendment of state constitutions in USA

Via referring the current practice of amendment of state constitutions Gerald Benjamin proposed

six basic principles of formal amendment of USA state constitutions. These includes having

separate provisions for revision and amendment rules of state constitution, drafting some

provisions of the state constitution by the body which is independent from the legislative organs

of the government, having details on the amendment of state constitution which will be exposed

to abused by the legislative, framed different and rigid procedures of amendment of state

constitution than the ordinary laws of the state, putting the rules of amendment in single

constitutional location, ratification of the amendment through popular referendum.54

When we inspect the contemporary experience of amendment of state constitution in line with

the above principles of amendment; as we tried to reveal in chapter one of this paper revision is

specifically referenced in the constitutions of twenty-three states.55 The language of many other

state constitutions is not as precise as is desirable regarding this distinction between amendment

and revision. And twenty-five state constitutions expressly provide methods for amendments to

be proposed without legislative participation: by popular petition (the constitutional initiative),

state constitutional commission, or constitutional convention. With regard to having detail on the

amendment of some provision of state constitution, which will focus on the restructuring the

state government, constitution makers make this provision for amendment self-executing which

will be operable without the interference of the legislature. These details includes when, how and

by whom these amendment processes are to be made so as to achieve the goals beyond the easy

reach of the legislature. In addition to this all state constitutions of USA with the exception of

Delaware make the amendment of the state constitution rigid than the ordinary laws of the state

via including an additional step for ratification through popular referendum.56

53

John Dinan, Patterns of sub national constitutionalism in federal countries (Rutgers law journal 2008) Vol. 39:837 P.843 viable on http://org.law.rutgers.edu/publications/lawjournal/issues/39_4/03DinanVol.39.4.r_1.pdf last visit on May 2,2015 54

Gerald Benjamin supra note 35 P.179 55

See the list of states on Supra note 16 56

Gerald Benjamin supra note 35 P.180

23

Furthermore the formal amendment of all state constitution had been done in conformity with

some of the expressed and implied limitations of amendment of state constitution revealed in

chapter one of this paper. The expressed limitation on amendment of state constitutions in USA

will be imposed either by the state constitution itself or other higher laws. The limitation which

is imposed by the state constitution itself is respecting the ‘rules of amendment’ entrenched

under the state constitution in a sense that, the formal amendment of state constitution shall be

made based on the rules of amendment framed under each state constitution. And express

limitation on the amendment of state constitutions provided by higher laws is articulated under

article 6 of the1787 USA constitution stated that:

This Constitution, and the Laws of the United States which shall be made in Pursuance

thereof; and all Treaties made, or which shall be made, under the Authority of the United

States, shall be the supreme Law of the Land; and the Judges in every State shall be bound

thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.57

This provision of the federal constitution imposed the express limitation upon the amendment

power of state constitution; which refers that, the amendment of the state constitution is not only

expected to be made in line with the federal constitution and its subsequent amendment, but also

with the federal laws, and the treaties made or which shall be made under the authority of united

state.

The amendment of state constitutions will also expect complied with the implied limitation of

amendment of state constitution. The implied limitation of amendment to state constitutions

includes identifying the difference between amendment and revision of the state constitution and

complied with the living constitution of the federal government. As we tried to explain from the

above revision and amendment has different legal recognition within twenty-three state

constitution, thus identifying the difference between revision and amendment can rise as the

defense against the amendment of state constitution in the remaining twenty- seven states.

The amendment of state constitution shall also comply with the living constitution of the federal

government. According to David A. Strauss living constitution is the unwritten constitution of

USA which binds both the political actors and the citizen in general. The sources of the living

57

Art.6 of 1787 USA constitution

24

constitution are both the decision of the court and the tradition of the country in general. Thus,

since the living constitution is the part and parcels of USA constitution the formal amendment of

state constitution shall be done in confirm to this.58

3.1.3 Procedures of amendment of state constitution in USA

Amendment of state constitution in USA has initiation and adoption (ratification) phases. In the

two subsequent phases of amendment the stakeholders take part in the process and the activities

done by them have their own distinctive nature.

3.1.3.1 Initiation of amendment of state constitution

As we try to explain in chapter one of this paper initiation is the first steps in the amendment of

state constitution and it is the stage upon which every amendment machinery is started in motion.

The contemporary experience shows that the amendment process of state constitution in USA

employed four basic mechanisms to initiate the constitutional amendment. This includes the

initiation via constitutional convection, constitutional commission, state legislature and popular

petition. The individual state constitution may use any or all of the mechanism of initiations.59

From the aforementioned mechanisms of initiations, proposing through constitutional convection

has been used from the middle of the 17th century up to now by all USA state constitutions but

the procedure for calling to sessions is different across the states. Ordinarily states grant the

legislature authority to decide whether a convention call should be placed on the ballot for

popular approval, with a two-thirds vote of each house typically required for submission of the

question.60 However, fourteen states embracing the Jeffersonian notion that no generation can

bind future generations on fundamental political matters also require that the question of whether

a convention should be called be placed on the ballot periodically. Generally, so as to amend the

state constitution fifty U.S.A states have held a total of 233 constitutional conventions from 1776

to the present.61

58

David A. Strauss supra note 6 p.3 59

John Dinan ,State constitutional developments in 2012, P.3 available last visit March1,2015 http://knowledgecenter.csg.org/kc/content/state-constitutional-developments-2012 60

Gerald Benjamin supra note35 P.199 61 John Dinan, The earth belongs always to the living generation, the development of state constitutional amendment and revision procedures, (The review of politics journal Cambridge university press 2000), Vol. 62, No. 4 p. 645-674

25

Next to initiation by constitutional convention, the state constitutions of the USA also

empowered the state legislature so as to initiate the amendment of the constitutions. Whereas the

vote for proposing the amendment is different one from the other, in a sense that eighteen states

require a simple majority in each house of the state legislature, seven states require a three-fifths

vote in each house, and eighteen states follow the federal Constitution in mandating a two-thirds

vote in each house. Three states Connecticut, Hawaii, and New Jersey permit the legislature to

propose amendments either by an extraordinary majority or by a majority vote in two legislative

sessions, the second following an intervening election. Four states Arkansas, Illinois, Kansas,

and Kentucky limit the number of amendments that the legislature can propose at any one time.

And the state legislature is not empowered so as to propose the amendment in all aspects of the

constitutional issues.62

The other mechanism for proposal of amendment of state constitution is initiation through

constitutional commission. Though there is interstate variation, constitutional commission is

empowered to propose the amendment of state constitution and its selection, size, and

composition is dealt with by statute or by executive order rather than by the state constitution.

However, two states have pioneered distinctive approaches on the establishment of constitutional

commission. Utah has by statute created a permanent constitutional commission to study

constitutional problems in the state and report its findings and recommendations to the

legislature63 and Florida in its 1968 constitution authorized the periodic formation of a

commission that would recommend constitutional changes directly to the electorate.64

The last mechanism for initiation of state constitution, employed under USA state constitution is

initiated through a popular petition. In USA eighteen states employ popular petition initiative

mechanism of these in sixteen states if the proposal gets the required signature then the initiative

amendment is placed on the ballot for popular ratification whereas in Massachusetts and

Mississippi if the proposals obtaining a sufficient number of signatures must first be referred to

the state legislature and, depending on its action, may only then be submitted to the voters.65

62

Gerald Benjamin supra note35 p.200 63

Jean Bickmore White, the Utah state constitution :a reference guide ( Greenwood Press, 1998), pp. 17 64

Florida Constitution, article XI, section 6 65

Gerald Benjamin supra note35 p.202

26

3.1.3.2 Adoption (Ratification) of Amendment of State Constitution

The initiation for amendment of the state constitution may propose via any of the aforementioned

institutions. To enforce the newly emerged provision as the part of the state constitution, its

ratification or adoption by the body empowered to do so will be the most decisive phase in the

process of amendment of state constitution. Ratification will be done by different institutions

depend on the arrangement of the rules of amendment of the state constitution.

In USA the amendment of all states constitutions, but state of Delaware is ratified via popular

referendum.66 This mechanism of ratification has its own backdrop with the American principles

of popular sovereignty. The founder of American state constitution believed that the ultimate

power shall be lays on the people. If the ultimate sovereignty power has been given to the

people, thus the constitution shall be written by a popularly elected body other than the

legislature, which Americans labeled a convention, and then ratified through a process that

elicited popular consent ideally is a referendum. Americans were not ceased on this, but they

moved quickly to the conclusion that if a constitution rested upon popular consent, the people

should have the power to amend it based on the rules of amendment framed within it.67 Because

of this principle the proposal of amendment in forty-nine state constitution is ratified via popular

referendum. Whereas the voting system upon which the proposal of amendment ratified has its

own difference among state constitutions.

Different from the forty-nine states of USA the constitution of Delaware; an amendment takes

effect if it has twice received a two-thirds vote of the membership of each house of the state

legislature, with an intervening election at which voters can presumably make known their

views.68

66

Dinan, State Constitutional Developments in 2006, P. 11. available http://knowledgecenter.csg.org/kc/system/files/Dinan_Article_5.pdf Last visit may 2,2005 67

Donald Lutz Towards a theory of constitutional amendment,( American political scienceAssocaition1994) Vol.88 No.2 P.355 68

Delaware Constitution, article XVI, section 1

27

3.2 Amendment of State Constitutions in Australia

3.2.1 General background

In Australia there were some states which had their own state constitution before Commonwealth

of Australia Constitution Act was adopted in 1901. For instance the state of New South Wales

and the state of Tasmania in1856 and the state of West Australia in1890 adopted their own

respective constitution. These state constitutions were originally amend their constitution via the

parliament act alone though in some states special majorities were needed in the parliament to

amend some provision of their constitutions for example the structure of the parliament.69 These

rules of amendment of the state constitution had been originated from the idea of Great Britain,

because they thought supremacy of Parliament will be compatible with the unity of the Empire,

the authority of the Crown and the ultimate sovereignty of the Imperial Parliament.70 And after

the Commonwealth Australian constitutional act adopted in 1901, the document itself recognized

the constitution of the states as if they were made by the state themselves. Which means Section

106 of this constitution states that:

The Constitution of each State of the Commonwealth shall, subject to this Constitution,

continue as at the establishment of the Commonwealth, or as at the admission or

establishment of the State, as the case may be, until altered in accordance with the

Constitution of the State.71

This provision of the constitution empowered the states, which had already their own

constitution, to amend according to their rules of amendment. Based on this empowerment the

some state constitutions were amended subsequently by the state parliament.

Other states which had not their own constitution during the adoption of the commonwealth

constitution were governed by imperial legislation; later they replaced this legislation by their

own constitution such as State of South Australia in1934, State of Victoria in 1975 and State of

Queensland in 2001.The states which had constitution during the adoption of the federal

constitution and the state which had been adopted after the coming in to force of the 1901

commonwealth Australian constitution adopted the same rules of amendment. But, latter by

69

See the constitution of state of New south Wales 1856,Tessimania 1856 and West Australian1890 70

R. D. Lumb, Fundamental law and the processes of constitutional change in Australia(Journal of federal law review1978)Vol.9 P.164 http://www.austlii.edu.au/au/journals/FedLawRw/1978/12.htmlb last visit May2,2015 71

The Commonwealth of Australia Constitution Act 1901 Section 106

28

using their own rules of amendment four states (Queensland, the state of South Australia,

Western Australia and New South Wales) changed their rules of amendment via introducing for

amendment of some provision of their constitution so as to pass on referendum.72

3.2.2 Principles and limitations on Amendment of states constitutional in Australia

The procedures for amendment of state constitutions in Australia, in comparison with other

federation, like USA, is too flexible even some provision of the state constitution will be

repealed by the ordinary act of the state parliament. Due to this the supremacy nature of state

constitution is open to question. Similar to this, if we closely inquired amendment of state

constitutions in Australia in line with the basic principles of amendment of state constitution

discussed in chapter two of this paper; it is awkward to call, it is the rules for amendment of state

constitution because most of the amendment rules recognized under Australian state

constitutions are not matched with basic principles of amendment of state constitution.

Among these basic principles, having anther alternatives to propose the state constitutional

amendment different from the state legislative is the first one. Whereas, from the very beginning

in any of the Australian’s state constitutions, there is no rule which governs how to propose the

amendment of the state constitution.73 If these rules are not entrenched by the state constitutions,

thus the decision will be goes to the parliament, and the parliament will not be in position to

empowered the body which will affect its own interest, even if it wrongly assign to the body

which will affect the interest of the parliament thus the parliament may revoked this power

simply through repealing that law. Thus, we can deduce that the rules of amendment of state

constitution of Australia are not in line with the aforementioned principles.

Similarly in the rules of amendment of some Australian state constitutions (The state of

Tasmania and Victoria) there is no some details on some constitutions provision especially on

the provisions which will be exposed for abused by the legislative body of the state government

which means the legislative of these states can do ban the amendment of some provision though

its amendment is decisive for the society in general.74 Indeed in the state of Queensland, the

state of South Australia, West Australia and New South Wales these provisions are ratified via

72

John Waugh, Australian’s state constitutions reform and republic( agenda in1996) Vol.3 No.1 P.62 73

See the state constitutions of Queensland, South Australia, West Australia, New South Wales Tasmania and Victoria 74

State constitution of Tasmania and Victoria

29

popular referendum, but still the vote of the parliament of the state is still decisive on the

amendment. And at the last in all Australian state constitutions the rules of amendment of state

constitution have not a single location in each state constitution. Generally, we can conclude that

in Australia it is difficult to say there is supremacy of state constitution rather the supremacy of

the parliament looks apparently manifested.

In addition to this, amendment of state constitutions in Australia shall be done in line with the

express and implied limitations of constitutional amendment. The express limitation of a state

constitutional amendment in Australia will be expressed the limitations imposed by the state

constitution itself and other higher laws. The limitation provided by the state constitution is

abiding to the rules of amendment. In a sense that, any amendment of state constitution shall do

based on the procedures framed within the state constitution. And the other limitation will be the

restriction provided by other laws. These may further divide into the limitations existed before

and after the enactment of Australia Act of1986. Before the enactment of the aforementioned act

the amendment of the state constitutions will expect to be done in line with the imperial

paramount statute law. And if it is inconsistence with these laws, thus the amendment is

repugnant and void, while, after enactment as stated by section 5 of 1986 Act, the amendment of

the state constitutions will be expected to confirm only with the three imperial paramount laws.

These are the Commonwealth of Australia Constitution Act 1900, including the Commonwealth

Constitution; the Statute of Westminster 1931; and the Australia Act itself.75 Furthermore, the

commonwealth constitution of 1901 under section109 provides that when a law a State,

including amendment of the constitution is inconsistent with a law of the Commonwealth, the

latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.76

Secondly, the implied limitations imposed upon the amendment powers of state constitution of

Australia will be respecting the decision of Australian high court decision rendered on the

constitutional issues. Australians had been empowered their high court so as to interpret the

constitution of the common wealth and by doing this it developed a lot of constitutional doctrines

such as the doctrine of intergovernmental immunities stated that although there was no general

immunity between State and Commonwealth governments from each other's laws, the

75 Australia Act 1986 section 5 76

The Commonwealth of Australia Constitution Act 1901 Section 106

30

Commonwealth cannot enact taxation laws that discriminated between the States or parts of the

States nor enact laws that discriminated against the States, or such as to prevent a State from

continuing to exist and function as a state.77Thus the amendment of the state constitution has to

be made in line with these and other doctrines developed through the interpretation of the high

court.

3.2.3 Procedures of Amendment of state constitution in Australia

As we tried to discuss in chapter one of this paper the amendment of constitution in general sub

national constitution in particular has to be amended based on the procedure different from the

ordinary acts of the state legislature and has to involve extra-ordinary stakeholders. Among the

means which will assist to make the procedure more difficult than the ordinary act of the

parliament may be framing the initiation and adoption phase within the rules of amendment. But

the procedure of amendment of state constitutions in Australia is distinct from other federation

and with the jurisprudence in general. In a sense that in any of the Australian state constitution,

there is no rule deals about how, who and by what means the proposals for amendment of state

constitutions has been initiated. 78

After initiation adoption of the amendment will be the decisive phase in the process of

constitutional amendment. Concerning to this phase, there is no uniform rules throughout

Australian state constitutions, even within the single state constitution the adoption of some

provisions are different from others. Which means as we try to explain in the above, originally

the amendment of all state constitution was adopted via the simple majority vote of each state

parliament, although in some states special majorities were needed in the parliament for some

changes such as in the structure of the parliament. By using this power of amendment the

parliament of four states such as New South Wales, Queensland, South and Western Australia

have gradually introduced the requirement of referendum. Currently the adoption of the proposal

within these four states constitution most provisions are adopted with the simple majority of the

parliament and other some will be adopted with special majority of the parliament of each state

77 Susan Kenny The high court of Australia and modes of constitutional interpretation (P.46) available at http://www.judcom.nsw.gov.au/publications/education-monographs-1/monograph4/04_kenny.pdf visit May 2,2015 78

The list on Supra note 73

31

and getting the majority support in popular referendum.79 Under these state constitutions the list

of provision those have to go to a referendum differs among the state, but in each of these four

states it includes the structure of the parliament and the provision deals about the rules of

referendum.80

In New South Wales and South Australia constitutional provision deals about the distribution of

the electorate and a guarantee of rough equality in the numbers of voters in each electorate can

be adopted only through referendum. In state of Queensland and Western Australia constitutional

provisions about the Crown and the state governor are directly adopted via referendum. In the

state of Victoria and Tasmania to adopt the bills on the amendment of state constitution

referendum is not the requirement. The legislature of each state can adopt the amendment of

most provisions of the constitution. In Tasmania the only entrenched constitutional provision is

adoption of the amendment of the duration of the house of assembly. According to the State of

Tasmania constitution, bill with an amendment provision determined the term limit of the house

of assembly will be adopted with the two- third majority vote in the lower house. And the

constitution of Victoria also puts the need of an absolute majority in both houses on the adoption

of provisions dealing about the Crown, the parliament and on the jurisdiction of the state

supreme court.

3.3 Reviews of state constitutional Amendment in USA and Australia

Review the amendment of state constitutions is the means used to check the power of the

political actors which are assigned to amend the state constitutions. While in most federations,

sub national constitutions are not recognized this system under their respective constitutions.

Both in America and Australia the power to review the amendment of state constitutions is not

clearly articulated in any of their state constitutions. While through the decision rendered by

USA supreme court1798 in the case of Hollingsworth v. Virginia the federal and state courts

have been commenced the revision of formal and procedural regularity of constitutional

amendment. Both courts under their respective constitutions have the power to check the

amendment of the constitution, whether or not it is done in line with the rules of amendment

entrenched under each constitution. But this power is limited on the formal and procedural

79

Cheryl Saunders The constitutional credentials of state constitutions, (Rutgers’s Law Journal, 2011)Vol. 42, P.17availbel at http://ssrn.com last visit May1,2015 80

See the state constitutions of New South Wales, Queensland, South Australia and Western Australia

32

inconstancy of the amendment and the review will be done after the amendment is adopted by

the institution empowered to do so.81

Similarly in Australian through the decision rendered by the federal high court in the case

between Lander v. Citizenship in1952, the courts have the power to review the formal and

procedural consistency of any constitutional amendment. Here, though the state courts have the

power to review the constitutionality of the state constitutions, but their decision is not final

rather it is subject to the appeal to the Australian Federal high court. And its decision

has precedence effect on other courts.82

81

Kemal Gözler supra note 32 p25 82 Susan Kenny The high court of Australia and modes of constitutional interpretation (P.46) available at

http://www.judcom.nsw.gov.au/publications/education-monographs-1/monograph4/04_kenny.pdf visit May

2,2015

33

CHAPTER FOUR

4. AMENDMENT OF STATE CONSTITUTION IN ETHIOPIA

In most federations, the constitution of the union is ‘incomplete’ as a governing constitutional

document, in a sense that it does not seek to prescribe all constitutional arrangements. Rather, it

leaves ‘space’ by the central government constitutional architectures to be filled via the

constitutions of sub national units.83 Sub national unites may fill the space by making their own

new constitution or later on, either through interpretation or amending its text. In other words,

having the gap on national constitution will provide an opportunity for the state government so

as to make their own constitution in line with their local reality. Again, the incomplete nature of

the state constitution due to the fallibility of human being and its dynamic understandings about

the rules governs its behavior; the sub national constitution is always subject to amendment. The

amendment of sub national constitution will be carried out either formally based on rules of

amendment or informally without abiding to such rules entrenched under each state constitution.

The formal amendment of state constitutions under Ethiopian federal system has its own

backdrops which had been experienced before and has its own principles, limitation and

procedures those have to be respected by the political actors when they amend the state

constitution. Thus, having details on these issues with compared to other federations will be the

primary quest for this chapter.

4.1 General Backdrops of states constitutional Amendment in Ethiopia

In Ethiopia empowering sub national units so as to have their own constitutions is not the first

innovation of the 1991 Transitional charter. Rather, it was started during Eritrea federated with

Ethiopia through the resolution of United Nation General Assembly in 1952. Pursuant to Art.92

of the 1952 Eritrean Constitution, the chief executive or one quarter of the Eritreans people

Assembly can propose the amendment of the constitution. If the proposal of the amendment

voted by three-quarter members of the assembly in office or in two successive sessions by two-

third majority members of the assembly presented and voted then it will be declared as it is

adopted but to enter into force it shall be ratified by the Emperor, sovereign of the federation.84

83

Donald S. Lutz, The United states constitution as incomplete text, (Annals American Academy of Political and Social Sciences1988)Vol. 23,P. 496 84

Eritrean constitution of 1952 Art. 92-93

34

This implies that theoretically the Assembly of Eritreans people had its own decisive power to

amend the constitution.

Next to this under Ethiopian constitutional history the decisive movements towards the

empowerment of sub national units so as to have their own constitution had been restarted

through the 1991 Transitional charter. And it was fully implemented through Pro.No.7/1992. The

charter had been guaranteed to the nation, nationalities and peoples of Ethiopia the right to self-

administer their own affairs within their own territory and effectively participates in the decision

of central government.85 While it was silent about the structure and number of self-governance

units those have to be established in order to give effect to the right of ethnic communities to

self-administration. It left the matter to the legislator. The latter gave effect to the right to self-

administration by legislating Proclamation No 7 of 1992, which provided for the establishment

of National Regional Self-Governments. This Proclamation organized the territorial structure of

the state based on the Charter’s commitment to the right of ethnic communities to self-

determination and to determine their own affairs. It established 14 self-governments and it

assigned the legislative authority of each self-government unit to the National/Regional Council,

whose members are fully elected by the population of the concerned self-government. Pursuant

to article 15(1) (a) of the proclamation each state Council had the power to issue the constitution

of the self-government.86 Based on this empowerment Oromia Regional state adopted its own

constitution in1993, but its subsequent constitution, which was adopted by Oromia regional state

in 1995 strangely no reference to the existence of the old constitution. And Tigray regional state

adopted its constitution in1995 slightly earlier than the coming into effect of the federal

constitution.87

By the 1995 FDRE constitution the regional states those were established through Pro.No.7/1992

were officially endorsed as constituent units of the Ethiopian federation. This constitution states

that the Federal Democratic Republic of Ethiopia shall comprise of States, and the States shall be

delimited on the basis of the settlement patterns, language, identity and the consent of the people

85

1991 Transitional period charter of Ethiopia Art.2 86

1992 national/regional self government establishment pr7/1992 Art.15(1) (a) 87

Tsegaye Regassa, Sub national constitution in Ethiopia: towards enriching constitutionalism at the state level (presented ,3 rd annual research conference in ECSU, 2008) P.16

35

concerned. Based on this requirement the constitution re-affirms the establishment of nine

regional States.

The constitution based on article 50(5) established regional state councils with the power to

draft, adopt and amend each respective state constitution. Based on this constitutional assigned

power; all states of Ethiopia adopted their own constitution in1995 onwards. These state

constitutions of Ethiopia operated after 1995 and before 2001 had been tied to include the ‘rules

for amendment’ of each state constitution. Whereas the rules for amendment of each state

constitution were not free from imperfections. In a sense that the rules of amendment of all state

constitution enforced after 1995 and before 2001 totally excluded the participation of local

government in the amendment process which is difficult to protect the interest of minority lives

within each state; in contrary to the commitment of the state as well as the federal constitution

towards human and democratic rights it used the same flexible amendment rules for all

constitutional provision of the state; all state constitutions were not clear how and by whom the

initiation of amendment has been done and though the problem was not put right by subsequent

revision of all state constitutions, the rules of amendment was not identified the provision

dealing about revision and amendment of the state constitutions.

So as to put right the above defect of all state constitution and with the objectives of ensuring a

better forms of good governance via a constitutional separation of power among the organs of

the state (especially between the legislature with the executive),to contextualized each respective

state constitution to the local reality and for entrenching good governance and efficient and

effective administration that helps to promote sustainable development in the states all state

constitutions had been revised in 2001 and onwards.88

But as its first formulation, the revision process of all state constitutions was not free from

blemishes. Writers, who had been conducting research on this issue, as well as concerned federal

and state institutions, have no unclouded evidence on how and by whom the proposal of revision

had been done. The writers like Tsegaye Regassa89 and Christophe Van der Beken90(via referring

88

See the preamble of all revised state constitutions of Ethiopia. 89

Tsegaye Regassa, Sub-national constitutions in Ethiopia: Towards entrenching constitutionalism at state level, (Mizan law review 2009) Vol. 3(1) P. 33- 52. 90

Christophe Van der Beken, Constitutional diversity in Ethiopia: A Comparative analysis of Ethiopia’s regional constitutions, (journal of African development studies 2010) Vol. 3, No. 1, P. 24

36

Tsegaye’s Article) said that the drafting process of all state constitution was carried out either by

standing committees of the Council or by committees appointed by the regional Chief Executive

(the regional president). And the adoption of the revision of all state constitution had been made

via each state council. Other writers argued against this by stating that the establishment of the

committee among each state council and adoption through the state council was a mere

ceremonial; the whole process was commenced, and ended in the federal government

particularly within the Prime Minister Office together with the dominant party that existed in

each respective regions.91 Whatever argument we take the constitutions of all regional states had

been revised and enter in to force in 2001 and its subsequent years.

Under all revised state constitutions there are rules of amendment which are expected to regulate

the formal amendment of each state constitution. And the amendment process of each state

constitution will be assumed to have some principles: which provides the directions to action

taken so as to improve the state constitutions, limitations: expected to put a boundary on the

power of amendment and procedures: serves as the path to carry out the activities properly. To

this point, exploring the principles, limitation and procedures of amendment of all revised state

constitutions of Ethiopia in comparison with the general jurisprudence and others federations’

sub national constitutions will be the primary quest of the next part of the paper.

4.2 Guiding principles and limitations for amendment of state constitutions under

Ethiopian federalism

Under Ethiopian context assign to sub national units so as to amend their constitution was

emerging during the middle of the twentieth century, but this power was paralyzed even

completely dismissed by the subsequent regime and the idea as well as the practice had been

reemerged after1991 and by its subsequent constitutional practice. Especially the current revised

state constitutions internalized the concept very well. But this power is not assigned to sub

national units without any boundary; rather, there are principles and limitations upon which the

political actors have to be bound by them.

When we inspect the amendment of state constitution in Ethiopia compared with the general

jurisprudence and the experience of other federations’ sub national constitutions; it has its own

91

Yohanes Yitayih, legitimacy of sub national constitutions in the Ethiopian federation: the case of Amhara regional government constitution(un published Addis Ababa Universty2010) P.70

37

distinct feature. Such as, all state constitutions of Ethiopia have been assigned the power to

initiate to other institutions which are different from the state parliament these includes the

initiation through the executives or councils of ordinary local government, councils of special

zone or special woreda. But state constitutions have not been empowered the people so as to

initiate the constitutional amendment like the American state constitutions. This is because of the

American state constitutions have been assigned the sovereignty, power to the people, whereas,

under all Ethiopian state constitutions this power lies to the nation, nationality and people. And

the group that is the nation, nationality and peoples are organized based on the principles of self

administration on regional level or within the region by establishing their own local government.

Thus, empowering the local government in order to have decisive power on the amendment of

state constitutions is more appropriate than the people.

Concerning to having details on some provisions of the state constitutions which would be

subject to abuse by the legislative organs of the government, all state constitutions of Ethiopia

have not these details and no provision of the constitution will be amended without the vote of

the state legislature. But in forty-nine states of America and four state constitutions of Australian

provisions which are dealing about the structure of the state parliament will be amended through

referendum.92Thus, under Ethiopian state constitutions empowering the parliament so as to have

the decisive vote on the amendment constitutional provisions dealing about its power, function

and structure will lead to abuse of power.

Amendment of state constitutions in Ethiopia also brings into effect within the boundary of some

restrictions. Firstly, these restrictions have been imposed expressly through state or federal

constitutions. With regard to the limitation provided by the state constitution, all state

constitutions of Ethiopia have been expressly limited the powers to amend the state constitution

through placing the rules which will govern on how to amend the particular provision of the

constitution. Similar to this, the 1995 FDRE constitution of also apparently limits this power by

placing the principles of the supremacy clause. Which means pursuant to the cumulative reading

of Art.9 (1) 93and50 (5) 94of the FDRE 1995 Constitutions, whenever the states, framed the new

92

See chapter three of this paper 93

The Constitution is the supreme law of the land. Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect

38

constitution or amend the already existed; political actors have the duty to check its consistency

with the federal constitutions.

Secondly the amendment powers of state constitution will be restricted by the limitations derived

from the implied wording of the state constitutions or from the decision of the body which has

been empowered to interpret the constitution. When we read the overall provisions of state

constitutions of Ethiopia they are impliedly narrow down the scopes of amendment power via

providing the supremacy of constitutions. On different provisions, but with similar wording all

state constitutions of Ethiopia stated that the Constitution is the supreme law of the regional

state: any law, customary practice or a decision of an organ of state or a public official which

contravenes this Constitution shall be of no effect. From this statement of each state constitution,

we can induce that any activities of each state parliament or the council of the any local

government which is not confirmed by state constitution will be void. And amendment of state

constitution is one of the activities of the state organ. Thus, if the amendment contradicts either

with the substantive or procedural part of the constitution, it will be of no effect.

The other implied limitation may be derived from the decision of the house of federation when it

rendered decision on constitutional matters. That refers; the 1995 FDRE constitution assigned

the power to interpret the federal constitution to the house of federation and any governmental

organ, including the states will have the duty to respect the decision of the house and if the

amendment of the state constitution contradicts with the decision of the house on constitutional

matters thus the amendment will be void.95

4.3 Procedures of Amendment of state constitutions in Ethiopia

When we say the state constitution, in Ethiopia, is the base to constitute every institutions and

serves as the source for any ordinary laws of the states, it does not mean it is immutable; rather,

it is emendable to adjust the constitution to the environment within which the political system

operates; to correct provisions that have proved inadequate over time and to further improve

constitutional rights or/and to strengthen democratic institutions.96 And the amendment process

of every state constitution will be carried out based on rules (procedures) which had been

94

The State Council has the power of legislation on matters falling under state jurisdiction. Consistent with the provisions of 1995FDRE Constitution, the Council has power to draft, adopt and amend the state constitution. 95

The cumulative reading of Art.62 (1) and Art. 9(1) of the 1995 FDRE constitutions 96

The objectives of rules of amendment framed in each revised state constitutions of Ethiopia.

39

designed to regulate the process from the binging up to its end. These rules (procedures) of the

amendment have the initiation and adoption stage.

4.3.1 Initiation of state constitutional amendment

Initiation of state constitutional amendment is an electoral process by which a percentage of

voters can propose an amendment and compel a vote on it by the body assigned to do so.97

Pursuant to all revised state constitutions of Ethiopia, it is the first phase upon which the

amendment machinery would be set in motion and the whole amendment processes of the state

constitutions begins. When we are dealing with this stage of a state constitutional amendment,

the important questions those needs are to be raised; who has the power to initiate the

amendment, what formal requirements are put up for those who or which are privileged to

initiate the amendment and what are the limitations imposed on the power of initiation.

Based on current experience as well as the wording of each state constitution the initiation for

amendment of state constitution can view in to two ways such as initiation for amendment of

other provision of the state constitutions and initiation for amendment of human and democratic

right.98

4.3.1.1 Initiation for other provisions of the state constitutions99

With the exception of provisions dealing about human and democratic rights the initiation for

amendment of all state constitutions has been carried out via the state executive council, state

council, council of special zone or special Worda, council of ordinary Worda or council of sub

districts (Kebele). By taking into consideration, their local reality state constitutions in Ethiopia

have been assigned the power to initiate to any or to all of the aforementioned institutions.

4.3.1.1.1 Initiation through council of the states

It is invariable in all federations empower the state parliament to initiate the amendment of the

state constitution, while there is no resemblance among sub national constitutions on the

constitutional issues those have to be proposed by the state legislature and on the process of

proposing the amendment. Sub national constitutions of USA expressly assigned some

97

Black's law dictionary (8th ed. 2004) 98

See the rules for amendment of revised state constitution of Oromia ,Amara, Tigray Afar, Harere, Somali, SNNP, Benshangule gumize and Gamebela 99

Other provisions of the state constitutions are the provision which are out of human and democratic rights

40

constitutional issues to the institutions like constitutional convection, constitutional commission

and to the people in general and the initiation process is either through any of the two house or

by the two house in joint or separate vote;100 others like the state constitutions of Australia have

been assigned the power to identify the institutions which will be able to initiate the amendment

of state constitutions to the state parliament.101

When we come to Ethiopian, in all revised state constitutions each state parliament has an

ultimate power to initiate the amendment of the state constitutions except provisions dealing

about human and democratic right. But the ways of voting and the process of initiation have its

own distinction among state constitutions. In all but two, revised state constitutions to initiate

and submitted the proposal to possible discussion and consequent decision to which the issue of

constitutional amendment concerns only one- third vote of members of the state council is a

precondition.102

Because of the state structure and local reality they have, the revised state constitutions of Harare

and SNNP adopted their own unique procedures of initiation. In the revised state constitution of

the SNNP, the council has been split into the councils of nationality and state councils. Thus,

either the state council or the councils of nationality can initiate the amendment of the state

constitution by securing two- third majority vote among its respective members.103 Similarly the

Harare region revised state constitution divide the state council in to people’s representative

assembly (PRA) and the Harare national assembly and either of the assembly can initiate the

amendment.104

4.3.1.1.2 Initiated by the council of the state executive

The second ways of proposing the amendment recognized by the seven revised state

constitutions is initiation by the council of state executive, in a sense that according to the seven

revised state constitutions (except Harare and South Nation, Nationalities and peoples regional

state constitutions) the council of each state executive can initiate and submitted the proposal to

100

See chapter three page25 of this paper 101 See chapter three page 30 of this paper 102

Revised state constitution of Oromia ,Amara, Tigray Afar, Somali, Benshangule gumize and Gamebela 103

Cumulative reading of Art.48 and Art. 124. of 2001 Revised Constitution of the Southern Nations, Nationalities and Peoples Regional State 104

2004 Revised constitution of Harare regional state Art.79(2)(a)

41

possible discussion and the consequent decision to whom the issue of constitutional amendment

concerns. Initiation by this institution makes unusual the procedure of amendment of Ethiopian

states’ constitution from other federations. And the procedure by itself has its own defect

because if the constitution grants to the executive to initiate the amendment an unscrupulous

executive may seek to amend the state constitution for its own political ends. Especially for

federation, like Ethiopia by which its democracy found at the infant stage the problem will be

twofold.

4.3.1.1.3 Initiation via the ordinary Woreda or sub district (Kebele) councils

In most federations the dominant pattern is require some sort of formal participation of sub

national governments on the initiation for amendment of national constitutions although the

ways of participation varies widely. Sub national constitutional initiation processes, by contrast,

are less prone to require involvement of ordinary local governments.105 This is due to the

relationship between national and sub national governments differs from the relationship

between sub national and local governments and many of sub national constitutions involve the

people directly in the processes initiation through empowering the society so as to initiate the

amendment of the state constitutions, for instance eighteen states of USA provides an

opportunity to the people in order to initiate the amendment of state constitutions.106

Whereas under Ethiopian federalism the relationship between the state with the ordinary local

government is not similar with USA; which refers that local governments in Ethiopia have more

autonomy than the USA and all state constitutions are not provided the opportunity to the people

directly so as to initiate the amendment of state constitution. Because of this, except the states of

Harare and SNNP, ordinary local governments are the decisive actors in the initiation of state

constitutions. In each of the seven regional state constitutions of Ethiopia one- third of ordinary

districts (Woreda) in the region can initiate the amendment of state constitution if it secures the

majority vote of the members of each ordinary district council.107 Similarly the six state

105 John Dinan, supra note51 P.16 106

John Dinan, supra note51 page17 107

See the rules for the initiation of the revised state constitution of Oromia ,Amara, Tigray Afar, Somali, Benshangule gumize and Gamebela

42

constitutions permit to sub districts (Kebeles) councils to propose the amendments of state

constitution if it is supported by one-third of the whole kebele councils in each region.108

Ordinary district (Worda) in SNNP and sub-district (Kebele) in Harare, Somali and SNNP

regional states have been gotten constitutional recognitions while these ordinary local

governments cannot initiate the amendment of the state constitutions. The reason why, these

regional states provide different treatment for these local governments is not clear. Even in

SNNP regional state, there are people who are recognized as nationally, nationalities and

peoples, but live in the ordinary woredas;109 if the ordinary Woredas have no any say about the

amendment of state constitution, then the recognition of these people as a nation, nationalist and

people will be existed with the mercy of the majority. Similarly the former three states are not

provide the opportunities to the people directly to initiate the amendment of the state

constitution, like USA states; to compensate this, empowering the local government up to grass

root level to initiate the amendment of the state constitution is the general principle adopted by

all Ethiopian state constitutions thus putting the kebele out of this power will be contradictory.

4.3.1.1.4 Initiation via the council of special Zone or special Worda

Initiation through the councils of nationalities zone or via the council of special woreda makes

unique some of Ethiopian state constitutions from the other federations. So as to secure the right

to self- determination of nation, nationalities and peoples some regional states have been

established nationality zone and special woreda and each nationality zone and special Woreda

has its own council which has the power to initiate the constitutional amendments of the state

constitution. From the state constitutions Amara, Benshangule-Gumze, Gamela and SNNP

regional states’ revised constitutions empowered the councils of nationality zone and With the

exception of Benshangul Gumize, all of these regional states have been assigned the power to

initiate the amendment of the state constitution for the councils of special Woredas. Particularly

pursuant to the revised state constitutions of Amara regional states only one nationality zone

council can initiate the amendment if it secured a majority vote among its members.110 This is

108

See the rules for the initiation of the revised state constitution of Oromia, Amara, Tigray, Afar, Benshangule gumize and Gamebela 109

Like Debub Omo and Bench Majji Zones in SNNP region. 110

The 2001 Revised Constitution of the Amhara National Regional State Art.117(c)

43

the best ways of protection of minority right through proposing the constitutional amendment by

themselves.

With regard to, the revised constitutions of Oromia and Somali regional states since the two

constitutions assigned Sovereign power only to the Oromo and Somali people respectively, not

to minority live within the respective region, thus, it is not surprising the exclusions of the

minority in the initiation of the amendment. Whereas the Revised constitutions of Tigiry region

recognized the existence of Europ and Kunama within the region and Kunama has their own

kebele(Tabiyia) and Erop has its own ordinary Woreda but they have no any especial ‘say’ on

the initiation of the amendment different from the ordinary Woreda and Kebele(Tabiyia).111From

this we can induce that their recognition as nation, nationalities and peoples will be worthless.

Similarly, we can take the same conclusion for Afar regional, state, since the region recognized

Argoba Special Woreda pursuant to Atr.43 (2) of its revised constitution, but without any

especial ‘say’ on the initiation of the constitution.

4.3.1.1 Initiation for the Amendment of provisions on human and democratic rights

With regarding to the amendment of human and democratic rights recognized under all

Ethiopian state constitutions we can view in to two ways; one the states which are exclusively

used the rules for amendment of federal constitution112 and those are used the rules provide for

the amendment of both federal and state constitutions.113 Concerning to the former case on

different provisions but on similar wording states constitutions states that the provisions dealing

about human and democratic rights shall be amended pursuant to Art.105 of 1995 FDRE

constitution.114 And a proposal of amendment to be adopt in line with Art.105 of FDRE 1995

constitution first it has to be initiated based on the procedures provided under Art.104 of the

same constitution. From this link of the federal and state constitutions we can deduced that the

amendment of human and democratic rights recognized under the state constitution of Amara,

Oromia, Tigray, Afare, Somali and Harere will be proposed by a two-thirds majority vote in

House of Peoples' Representatives, or by a two-thirds majority vote in the House of the

Federation or one-third of the State Councils of the member States of the Federation, supported

111The 2001 Revised Constitution of the Tigray National Regional State Art.106 112 The state constitutions of Tigray, Afar, Amara, Oromia, Harere, Somali 113 The state constitutions of Benshangule-Gumiz, Gambela and SNNP 114 See the rules for amendment of human and democratic rights recognized under revised state constitutions of Amara, Oromia, Tigray, Afare, Somali and Harare

44

by majority vote in each Council.115 In other word to initiate the amendment of human and

democratic rights recognized under Oromia state constitution the majority vote of Amara or

Afar, or Harare or Somali state council is the requirement. This is against the autonomy of the

state and it violates the principles of democracy which serves as the milestone for the existence

of state constitution.

On the other hand, Benshangule-Gumiz, Gambela and SNNP states amend human and

democratic rights recognized under their respective constitution through the use of the rules of

amendment entrenched under both the federal and the state constitution. On different provisions

and with similar wording the constitutions of the above three regions state that provisions on

human and democratic rights will be amended when the counter provision of the federal

constitution is amended and the ratification will be done based on the procedures provided under

each state constitution.116

But these three state constitutions have not been said anything about the how to initiate the

amendment of these provision. Impliedly the amendment by the federal constitution will serve as

the initiation not as already ratified provisions.117 This will be directly contradict with Art.13(1)

of the 1995 FDRE constitution stated that all Federal and State legislative, executive and judicial

organs at all levels shall have the responsibility and duty to respect and enforce the provisions

human and democratic rights.118 As stated by this provision of the federal constitution whether

the state ratified or not, the amendment on human and democratic rights based on their

constitution, as far as the amendment is adopted based on the rules for amendment of federal

constitution, they have the duty respect and enforce.

4.3.2 Adoption of the amendment

The Constitution of a sub national units’ is the fundamental law of the state; the basis on which

all other laws are made and enforced. It has been described as a ‘superior or supreme law’ with

‘perhaps greater efficiency and authority’, and ‘higher sanctity’ and more permanence than

ordinary legislation. Nevertheless, a democratic Constitution has to be particularly responsive to

115

1995 FDRE constitution under Art.104 116

See the rules for amendment of human and democratic rights recognized under revised state constitutions of Benshangule-Gumiz, Gambela and SNNP 117

Ibid 118

1995 FDRE constitution under Art.13 (1)

45

changing conditions, since the Government of sub national units in Ethiopia, founded on the

principle of sovereignty of the peoples119 or one ethnic group120 or nation, nationality and

people,121 “must make possible the fresh assertion of the popular will as that will change”. To be

responsive to these changes framed the ‘rules for amendment’ of the state constitution will be the

ultimate means. In the amendment process of the constitution, ratification (adoption) will provide

life for the newly incorporated constitutional provision and it is the difficult and all inclusive

phases for amendment of the state constitution. With regard to this stage the general

jurisprudence and other federations’ experience, shows that sub national constitutions may set

different rules of ratification based on their local reality and ways of their democracy. For

instance, forty- nine states of USA and four states of Australia for some provisions of the

constitution set ratification of amendment through popular referendum.

Gazing to the Ethiopian federation sub national unites set their own unique rules of ratification

so as to respond social, economic and political reality of the society upon which the constitution

operates. Generally the rules for ratification entrenched in each state constitution divided

constitutional issues into three segments. These are ratification (adoption) on the amendment

human and democratic rights, ‘rules of amendment’ and other provisions of the state

constitutions.122

4.3.2.1 Adoption of the amendment of other provisions of the state constitutions

In Ethiopia the proposal on each provision of the state constitutions, with the exception of human

and democratic rights and rules of amendment, will be adopted via the vote of state council alone

or through the separate vote of the council of state and ordinary local governments (districts) or

by the separate vote of the councils of state, ordinary local government (districts), nationality

zone and special Woreda.

4.3.2.1.1 Adoption via state council alone

In most federation to adopt the amendment proposal take the vote of the legislative organs of the

states to supplement the vote of other organs of the state government is common while approved

the amendment of state constitutions with the exclusive vote of the state legislature is an 119

See the preamble of Amara and, Tigray revised state constitutions 120

See the preamble of Oromia, Somali and Afar revised state constitutions 121

See the preamble of Harer, SNNP, Benshangule-Gumiz and Gambela revised state constitutions 122See the rules of ratification of all revised state constitutions of Ethiopia

46

exception. As we attempted to provide the detail in chapter three of this paper the Australian

state constitutions are among the exception. In Australia with the exception of some provisions

of the state constitutions the amendment is adopted with the ordinary act of the state

parliament.123

Owning to this, under Ethiopian federation only the states of Somali and Harare will be included

under this exception via empowering their state councils to adopt the amendment with its

exclusive vote.124

As stated by Art.109 (2) of the revised Somali regional state constitution the proposal which

have been made to amend the constitution, except the provisions on human and democratic

rights, will be approved when the members of the state council vote with two-thirds majority. In

comparison with other states’ rules of ratification, this rule of ratification for amendment of the

revised state constitutions of Somali region is too malleable and has its own imperfection.

The defects of this constitution include: first, the constitution will be exposed to amendment for

self-interested, partisan, destructive or short-term motives. Secondly, there is the absence of

direct participation of local governments: in the other federation, like USA and Australia

ratification through popular referendum is common, this because the seat of sovereignty in these

federations is about the people. But under Ethiopian state constitutions popular referendum is

replaced by the participation of local government since state constitutions provide the

sovereignty power to the peoples or to some specific ethnic group or to nation, nationality and

people125. And they are organized in regional, zonal or/ and at Woreda level, thus so as to

increase the participation of these group on the adoption of the amendment empowering local

government is better than the whole people. While under Somali regional state constitution this

principle has been missed through making powerless the local governments from the adoption of

the amendment. This will lead to the infringement of autonomy of local government (Wordas);

they already hold by constitution from Art. 74- 87.126 In a sense that if they have no any ‘say’ on

the approval of the amendment of the constitution, then their autonomy will be continued with

the mercy of the council.

123 see chapter three page29 of this paper 124 See the rules for ratification of the revised state constitutions of Harere and Somali 125 See lists supra note120,121 and122 126 The 2001 Revised Constitution of the Somali Regional Stat from Art.78-87

47

Similar to the state of Somali the amendment of revised state constitution of Harare is approved

with the exclusive votes of the state council but differ from the former the latter’s state councils

has two houses called a ‘People’s Representative Assembly’ (PRA) and the ‘Harar National

Assembly’ (HNA).127 According to the Art.79(2) revised Harare state constitution other than the

human and democratic right provisions the proposal of the amendment of the constitution will be

approved when it is supported via two-third vote of each house in separate session and two-

third vote of the joint session of the two house. As compared to the Somali state constitution the

procedure is rigid and it is more participatory. While with compare to other federations’ state

constitutions and even with other state constitutions of Ethiopia the procedure is flexible and has

the defect of non participation of local government. Pursuant to Art.75 of the revised Harare state

constitution kebele is the lowest level of administration, but it did not have the power to

participate on the adoption of the amendment of state constitution. Thus its existence will be as

far as the state council wants.

4.3.2.1.2 Adoption with the separate vote of councils of the state and ordinary local

government (districts)

The second path of ratification of the amendment under Ethiopian state constitution is adoption

by the separate vote of the state councils and the councils of ordinary local government

(districts). Globally the dominant practice is adoption of the amendment via the vote of the state

legislative and with popular referendum, while adoption with separate of vote of the state

councils and the councils of the ordinary local government is the exception and exclusively

applied in some of Ethiopian state constitutions. Under the Ethiopian sub national constitutions

the revised state constitutions of Oromia, Afar, Benshangul-Gumizeand and Tigray state

constitutions adopted the amendment of their respective constitution via the separate votes of the

of the state council and the councils of the ordinary local government (districts). Though these

four regional states of Ethiopia adopted the amendment of their respective constitutions with the

vote of the state and the ordinary local government, its quality of the vote to adopt their

respective amendment has its own difference across the states.

As stated by Art.112 (2) of the revised constitution of Oromia regional state and Art.107 (2) of

the revised state constitution of Tigray regional state with the exceptions of human and

127 The two organs are designed to create a balance between the group rights of the Harare ethnic group on the one hand and the individual rights of the regional population “as a whole” on the other.

48

democratic right provision and provisions on rules for amendment of each state constitution, the

amendment proposal will be approved when two- thirds of the district councils of each state

approved by simple majority and the state councils of each state approved the proposal with

three-fourth majority vote. If we see closely with the state constitutions of Somali, Harare, Afar

and Benshangule-Gumuze the constitutions of Tigray and Oromia regional states provide the

more rigid procedure for approval of the amendment. But their procedure of amendment with

respect to the protection of minorities’ rights has its own shortcoming.

The revised constitution of Oromia region, although it acknowledges the presence of other

peoples in the region, this does not have further consequences as far as the legal position of the

latter is concerned.128 Thus, it is not surprising that the exclusion of minorities’ ‘says’ on the

approval of the amendment and the problem is not on procedures of amendment but the design of

the constitution.

In addition to this, Art2 (13) of the 2005 Oromia regional state constitutional amendment states

provides:

The regional president has the power to dissolve any Woreda council, which it believes

has ‘endangering the region’s constitution’ and submit to the next meeting of the ‘Caffee’

by designating temporary Woreda Administration, if approved by ‘Caffee’ a new election

shall be conducted, if not approved by the ‘Caffee’, the Woreda council shall resume its

position.129

From this provision of 2005 Oromia regional state constitutional amendment the disputable

phrase is ‘endangering the region’s constitution’. The phrase is too general and it is open to

abuse by the regional president. Because if the councils of the district (woreda) opposed to

voting the amendment of the constitution thus the president may interpret it is endangering the

regional constitution, then s/he will be dissolved the councils of the district (Woreda). And it

will be against the empowerment of local government on participation of regional

constitutional amendment.

128

Christophe Van der Beken, Unity in diversity: federalism as a mechanism to accommodate ethnic diversity: the case of Ethiopia ( LIT Verlag Münster, 2012) P.244 129

Art2(13) of Pro.No.94/2005 issued to amend the revised constitution of Oromia regional state Pro.No46/2001

49

On the other way, the revised state constitution of Tigray recognized the existence of the Erope

and Kunama people in the regions, but they have not any especial ‘say’ on the approval of

amendment different from the ordinary Woredas and kebeles (Tabiya).130 From this we can

conclude that their recognition is at the mercy of the majority. That means if the majority wants

to avoid their recognition under the constitution then it can do any time it wants.

Similarly, the revised state constitution of Afar region also adopted the same procedures of

approval by different vote. Pursuant to Art.110(2) Afar regional state constitution with the

exceptions of human and democratic right and the amendment provisions of the constitution, the

proposals of amendment is approved when more than half of the councils of the districts

supported by majority vote and it is voted with three-fourth of the state councils. As of Tigray

region, the revised constitution of Afar region through Art.43 (2) recognized the existence of

Argoba people in the region but they did not have any special ‘say’ on the approval of the

amendment different from other ordinary Woredas; thus their recognition will exist on the of the

constitution as far as the majority wants to do so

And the last regional state which adopts the same procedure of amendment with that of the

aforementioned regional state is the Benshangul-Gumuzi region.Art.119 (2) (a) and (b) of this

regional state constitution provides that the amendment of all provisions of the constitution other

than the human and democratic right provision will be approved when two- third of the Woreda

councils in the region supported with two-third majority vote and the majority members of the

state councils is voted the proposal. The plain reading of this procedure is too flexible than the

other state constitution, which approved their proposals of amendment through the cumulative

vote of the state and ordinary local government (Woreda) councils. But this procedure has its

own imperfections. These includes first, the procedure is completely contradict with the central

objectives of the constitution; because the crucial objective of the constitution is to protect and

empowered the indigenous nationalities of the region131 and so as to achieve these objectives, the

constitution and Pro. No.73/2008 anticipates the establishment of five nationalities zone.132

Owning to this, complete exclusion of the councils of the nationality zone from the approval of

130

The 2001 Revised Constitution of the Tigray regional State Art.107(2) 131

See the preamble of 2002, revised state constitutions of Benshangule-Gumize. 132 Proclamation No. 73/2008, Benishangul/Gumuz Regional State Proclamation Enacted to Determine the Organization, Powers and Functions and Internal Working Procedures of Nationalities Councils and their Offices

50

the amendment will lead in to the simple infringement of their autonomy through the state and

ordinary woredas councils.

4.3.2.1.3 Adoption via the cumulative votes of councils of the state, nationalities zone special

woreda and ordinary woredas

The third paths of approval to amend some state constitutions in Ethiopian are adopting via the

separate vote of state, nationalities zone, special woreda and ordinary woreda councils. In other

federation adoption through the vote of the above institutions is not known that is why this path

of adoptions makes an additional unique feature for Ethiopian federation. Under the Ethiopian

federation with a few significant differences the revised constitutions of SNNP, Gambela and

Amara regional states take on this procedure of adoptions.

In accordance with Art.118 (2) of revised Amara regional state constitution the proposal of the

amendment of the constitution, outside human and democratic rights and the rules of

amendment, will be approved when the proposal is approved with the cumulative vote of more

than half of all the Woreda councils by simple majority, two-third majority vote of the members

of one of the nationalities councils and three-fourth majority vote of the members of the regional

councils. This rule of adoption is more rigid, participatory and all inclusive than other state

constitutions seen before. Under this procedure neither the regional government nor the ordinary

or especially local government has exclusive power to infringe the autonomy of the other.

The second state which adopts the similar procedures of ratification is the Gambela regional state

revised constitution. The constitution under Art.121(2) States that the proposal on the

amendment of the constitution, except the provisions on human and democratic rights and the

rules amendment, will be approved when the proposed amendment is supported with the

cumulative vote of more than half of all the Woreda councils with simple majority, more than

half of all the nationalities zone councils or special Woreda councils supported with simple

majority and it is voted with three-fourth majority vote of the members of the regional councils.

Compare to the Benshangule-Gumzi state constitutions the revised constitution of Gumbela

Region is more participatory, rigid and it is in line with the objectives of protecting and

empowering the indigenous nationalities of the region.

51

Similar to the above regional state constitution, the revised state constitution of SNNP adopt the

proposals of amendment with the vote of the regional councils, the councils of nationality zone

and special Woredas, whereas there are aspects of which the procedures of this constitution is

different from the above state constitutions. As we tried to explain in the above, unlike the

Gambela and Amara regional, state constitutions, the revised state constitution of SNNP divided

the state councils into these two houses are the state councils and the councils of nationalities.

Thus the two houses have the power to approve the amendment of the state constitution.

4.3.2.2 Adopting the amendment of “rules for amendment” of the state constitutions

No part of a state constitution is more important than the rules govern its amendment and its

entrenchment against it. In constitutional democracies formal state’s constitutional amendment

rules limit the power of political actors by entrenching procedures for altering the constitutional

text; it distinguished constitutional law from other ordinary laws, pre-commit successor political

actors; create a popular check on the judicial branch; channel popular will into institutional

dialogue and express constitutional values. Perhaps their most important function, however, is to

serve as a corrective device: amendment rules authorize political actors to update the

constitutional text as time and experience expose faults in its design and as new challenges

emerge within the sub national community.133

Provide that the rules for amendment of state constitution serves as the ‘lung’ of the state

constitution, thus they have to be protected from ordinary amendment of the constitution. To do

so the state constitution may entrench them in one of three ways: ordinarily, specially or

absolutely.134For instance, all state constitutions of USA ordinarily entrenched their rules of

amendment. Others constitution may especial entrench via heightened amendment thresholds

like the four state constitutions of Australia the rules govern about referendum will be amended

via popular referendum or the state constitution may entrench absolutely by making the rules of

amendment of the state unamendable.135 The rules of amendment which are not specially or

133Richard Albert, The structure of constitutional amendment rules(Wake forest law review2014) Vol. 49 p.913 134 See chapter two page 16 of this paper 135See chapter three page 25 and26of this paper

52

absolutely entrenched so as to protect from the ordinary amendment will be exposed to the

problems of ‘double amendment136’.

Coming to the Ethiopian state constitutions, their rules of amendment are entrenched through

ordinary and special entrenchment. Amara, Tigray, Afar, Benshangul- Gumize, Oromia, SNNP

and Gambela state constitutions have been provided the special entrenchment for the rules of

amendment govern the amendment of other provisions of the state constitutions and also for the

provision which entrenching the entrenchment. Different from this, state constitution of Oromia

provides the special entrenchment for the rules of amendment govern the amendment of other

provision of the constitution but the provision which entrenching this entrenchment is not

entrenched. Thus the entrenchment of rules of amendment that governs the amendment of the

other provision of the state constitution is meaningless, since the political actors can avoid the

entrenchment through double amendment.

Other state constitutions like Harere and Somali ordinarily entrenched their rules of amendment.

This refers that rule governs the amendment of the constitution enjoy no greater degree of

entrenchment than any other constitutional provision. Political actors therefore need no higher

quantum of agreement to amend these fundamental rules than less consequential matters and

they can avoid the ordinary entrenchment through double amendment.

With regard to the rules of amendment regulate the amendment of human and democratic rights

recognized under each state constitution, the constitution entrenches their amendment, but the

entrenching provision itself is not entrenched; it can be amended as any ordinary provisions of

the state constitutions.

4.3.2.3 Adopting the amendment of human and democratic rights

Under Ethiopian federalism the federal constitution apparently leaves constitutional space for

sub national unities so as to protect human and democratic rights of their people better than the

protections provides by the federal government. Contrary to this all state constitutions of

Ethiopia, with some insignificance modification has been copied human and democratic rights

recognized under the federal constitution. One may expect this because of the infancy of

136 Double amendment’ is the amendment which will be done twice by political actors first to avoid entrenchment made on some provisions of the constitution and second amending the provision which was entrenched before.

53

democracy, constitutionalism and human right within sub national constitutions of Ethiopia, and

may expect the improvement of state constitutions through recognized additional human and

democratic right through constitutional amendment. Thus, under this title can the state

constitutions have the possibility of improving the state constitutions through incorporating

additional human and democratic right by amending the constitutions, will be the main issue.

As we revealed in the previous part of this paper amendment of state constitution has the phase

of initiation and adoption. With regard to initiation for the amendment of human and democratic

right we had been already dealt then adoption of the amendment of human and democratic rights

will be the next part of this issue. And the adoption phase of human and democratic rights under

Ethiopian state constitutions will have been done through two paths. These are adoption of

human and democratic right based the exclusive use of the rules for adoption framed under the

federal constitution137 and adoption through the rules of ratification recognized under state

constitutions.138

4.3.2.3.1 Adopting in line with the rules of Federal Constitution

The state constitution may entrench some constitutional issues to protect itself from the problem

of double amendment. Since the local reality of each sub national unity has its own unique

feature thus the issues which will be entrenched by the state constitution may vary from state to

state. Under Ethiopian state constitutions the special entrenchment has been focused on the

provision deals about human and democratic rights. Among states, the constitutions of Oromia,

Amara, Afare, Harere, Tigray and Somali have been entrenched their human and democratic

rights provisions through ordering their adoption of the amendment in line with the rules of

amendment recognized under the federal constitution. These state constitutions on different

provision, but with similar wording states that state constitutional provisions dealing about

human and democratic right may be amended in accordance with Art.105 of the 1995 FDRE

constitution. Thus the amendment on human and democratic rights of these state constitutions

will be adopted when all state councils, by a majority vote, the House of Peoples'

137

The rules for adoption of revised constitutions Oromia, Amara, Afare, Harere, Tigray and Somali regional state 138 The rules for adoption of revised constitutions of SNNP, Benshangule-Gumize and Gambela regional state

54

Representatives, by a two-thirds majority vote and the House of the Federation, by a two-thirds

majority vote, approves the proposed amendment.139

From the cumulative reading of the above provisions of both the states and federal constitution,

we can induce that to amend human and democratic rights provisions incorporated under Oromia

state constitution and vis- versa the majority vote of the other eight states council is the

mandatory requirement. This worthless and self- restrictive provision of these state constitutions

makes different their rules of adoption and entrenchment from other federations’ sub national

constitutions. Globally, no sub national constitutions have similar experience with these

Ethiopian state constitutions. The existence of this provision makes imperfection and exposed

the Ethiopia state constitution to criticism.

Among these imperfections and critics provided by constitutional writers.140 First the inclusions

of this self-restricted and trash provision under the above six state constitutions add nothing for

better protection of human right, rather it creates the challenge of it by paralyzing the power of

states to amend their own constitutions so as to provide better protection of human and

democratic rights. Second, It is clearly contradicted with the autonomy of the states that is the

very purpose of having state constitutions. In a sense that, to amend any of the above state

constitutions, it requires the decision of federal or other states parliament, thus the autonomy of

the state which wants to amend its constitution will put in question. Thirdly, it is the mere

repetitions of the supremacy clause which has been set both on federal and state constitutions.

The 1995 FDRE constitution under Art.9 (1) and 50(4) provides the duty for state government so

as to amend their constitution in consistent with the federal constitution. This implies that if the

amended provisions of the state constitution are contradicted with the federal constitution, it will

be void pursuant to Art.9 (1) of the federal constitutions. Thus, setting anther supremacy clause

under the rules for amendment of the state constitution is a mere repetition of its federal

counterpart. Fourthly, pursuant to this self- restraint provision to amend the provisions of human

and democratic right all states will involve the vote of others’ state councils and the integrative

vote of the two federal houses and to the contrary the members of other states’ councils are not

elected by the people who will be governed via the would be amended provisions of the state

139

1995 FDRE constitutions Art.105(1) 140

Tsegaye Regassa supra note 90 P.45

55

constitution, this is clearly contradicted with the principles of democracy. Fifthly, the procedure

of amendment concerning to human and democratic right follows too rigid and integrative

approach, but the provision which entrenches this self-restricted statement can be amended as

any ordinary provisions of the state constitutions with the cumulative vote of the councils of the

state and local government. Though the state specially entrench the amendment of human and

democratic rights recognized under the six state constitution, in a real sense the provisions are

not protected from ordinary amendment because the state constitution has not been entrenched

the entrenching provision. Thus political actors can avoid this entrenchment via double

amendment and this makes the restriction worthless. Six, this self-restricted provision will be

completely locked the constitutional space of state constitutions which has been left by the

federal constitution so as to provide better protection of human right via amendment. Since the

constitutions of sub national state is plainer than its federal counter part, it will be appropriate to

goes with the development of human right through incorporating the more developed and up-to-

date human right, but if the state provide this self-restricted provision it is difficult do so.

4.3.2.3.2 Ratification of human and democratic right based on state rules of the

Amendment

Others like Benshangule-Gumiz, Gambela, and SNNP state constitutions have been followed

different procedures so as to ratify the amendment on human and democratic rights recognized

under their constitutions. These state constitutions on different provision, but with similar

wording conveyed that provisions on human and democratic rights of these state constitutions

will be amended if and only if the provision on human and democratic rights of the federal

constitution are amended. And that amendment shall be ratified based on the rules of adoption

framed within each of these three state constitutions which means the amendment on human and

democratic rights on the federal constitution is not final rather, it needs further ratification by the

state.

Again, this self- restricted provision for these three state constitutions has its own defects. These

defects includes: pursuant to Art.105 (1) (a) of the 1995 FDRE constitution amendment on

provisions of human and democratic rights will be amended when all state councils, by a

majority vote, approve the proposed amendment and after the state ratified the amendment then

all state organs will have the duty respect and enforce those amended human and democratic

rights in accordance withArt.13 (1) of the same constitution. Thus if the state ratified these

56

amendment which has been done based on the rules of federal constitution will be meaningless

and a mere repetition.

Secondly the provision will be violated the autonomy of these states. Provided that the proposal

on the amendment of the state constitution is done based on the rules of the federal constitution

with the involvement of other state parliament and the two federal houses; the autonomy of the

state will be at stack. Similar to the problem raised in the above the provision will narrow down

the constitutional space what states have to provide better protections of human and democratic

rights.

4.4 Review of amendment of state constitutions in Ethiopia

Similar to the dominant practice which has been experienced in other federations, state

constitutions of Ethiopia are silent on whether there is a review of the amendment of the state

constitution or not and on institutions which has been empowered to do this. Not only the state

constitutions, but also the practice what they had before did not show anything about this system

of checking the power of political actors on the amendment of the state constitutions. Thus, the

cost of this title will focus on the future arrangement of the system.

Because the state constitutions are not fully contextualized to the local reality of each state

society, it has both substantive and procedural imperfections and the dynamic nature of human

understanding about the rules governs its behavior, for the future the state constitutions of

Ethiopia will be expected to be subject to progressive and substantial amendment. This will be

done by the institutions which have been empowered by each state constitution. But the

institutions are not angles, in a sense that they may make mistakes when they make the

amendment, thus this mistake has to be put right by an independent institution. This may be the

institution which has been empowered to interpret the state constitutions and to assign this power

to these institutions constitutional reform will not be necessary. Similar to USA and Australia the

institutions can widen its power of constitutional interpretation to the review of constitutional

amendment through interpretation.

57

CONCLUSION AND RECOMMENDATIONS

While the people as well as the political actors live in the states want their sub national

Constitution to be as solid and as permanent a structure as they can make it, nevertheless there is

no permanence in Constitutions. Especially today, when the world is in turmoil and peoples are

passing through a very swift period of transition, what they may do today may not be wholly

applicable tomorrow. Therefore, while they make a Constitution which is sound and as basic as

they can and it shall anticipate the amendment. In a sense that sub national constitution is the

source for the legitimacy as well as the legality of other ordinary laws; it is the means to limit the

powers of the state government and it holds all constitutional issues of the concerned society.

But these constitutional issues are not eternal, rather, as the time goes they will be out date or the

government may inspire to add something more than the existing one. And these will be put into

effect through amending the state constitutions.

With regard to amendment of state constitution, there are convectional and non-conventional

(non constitutional) theories of constitutional amendment; models derived from the theories, and

principles, limitations and procedures those have to be met by political actors in the time of

amendment of state constitutions. Whereas the theories, models, principles, limitations and

procedures of amendment of state constitutions dealt in this paper are neither exhaustive or nor

individually exclusive, by which it means not only the state constitutions embodied other

amendment theories, models, principles, limitations and procedures, but also it may use more

than one model, theories, principles, limitations and procedures as far as it goes with the interest

of the people concerned and the local reality they have.

That is why ‘rules for amendment’ of sub national constitutions across the federations have some

difference one from the other. For instance the theories, models, principles, limitation and

procedures embodied under American state constitutions have their own difference from the state

constitutions of Australia and Ethiopia. But this does not mean they will not have some

resemblance. For instance, both in American and Ethiopian state constitutions, the initiation and

the adoption phase of the amendment is expressly framed under the rules of amendment of each

state constitutions and the state parliament have the power to initiate the amendment of the state

constitutions. Both in Australia and American state constitutions, there are proposals which will

58

be adopted through popular referendum and in Ethiopia and Australia the state parliament have

decisive power on the adoption of the amendment of the constitutions.

Having said this about the resemblances of rules for the amendment of sub national constitutions

within the three federations, they have also difference among sub national constitutions. For

example the rules of initiation for amendment of state constitutions in Ethiopian divided

constitutional provisions into human and democratic rights provisions and other provisions; the

initiation process as well as the political actors involved in the former is different from the latter

but not in American and Australian state constitutions. Similarly the ‘rules of adoption’ under

Ethiopian state constitutions divided constitutional issues into three groups. These are adoption

of the amendment of human and democratic rights, rules of amendment and other provision of

the state constitution. Like that of initiation, the process as well as the political actors involved in

the adoption of human and democratic rights is different from the adoption of amendment

of‘rules of amendment’ or on other provision of the state constitutions but in America and

Australia state constitutions there is no taxonomy of constitutional issues on the adoption stage.

From the comparisons what we did under this paper, the state constitutions of Ethiopia with the

logic and the reality existed on the ground, the general jurisprudence and from others well

experienced federations’ sub national constitutions; the amendment as well as the rules of

amendment of state constitutions in Ethiopia have some imperfections. These imperfections

include: the rules of amendment of some state constitutions are defective in providing the right to

participate for all interesting groups and are not set in the way to safeguard the rights of

minorities live in the state. Though all state constitutions tried to provide special entrenchment to

some provision of the state constitutions and to the ‘rules of amendment’ itself, the entrenching

provision itself is not entrenched, in a sense that it will expose to the problems of double

amendment. With regard to amendment of human and democratic rights all state constitutions

have been trying to specially entrench via making their amendment based on the rules of

amendment of the federal constitution, but this is against the autonomy of the state; fail to

comply with the principles of democracy and limits the opportunities of states to provide better

protection of human and democratic right for their residence through amending their

constitutions.

59

Therefore, the researcher suggests the following recommendations:

Protection of minorities is the central objective of the federal constitutions of Ethiopia.

Similar to the federal constitution; state of Tigray (Irop and Kunama), Afar (Argoba) and

Benshangule-Gumz (Berta, Gumuzi, Shinasha, Mao and Komo) have attempted to

protect the right of indigenous minorities live within their respective region. But, these

minorities have no any special power to preserve their rights from infringement by the

majority through amending the constitution. Owning to this, we recommend that these

regions shall rearrange their ‘rules of amendment’ in the way to save minorities’ right,

from violation via majority.

In all state constitutions of Ethiopia the proposal of the amendment is not approved

without the vote of their respective state council. This may lead to unrequested powers of

the state councils, especially on the amendment of the provisions offer the power,

function and privilege to it. Therefore, the state constitution shall provide other ways of

approval of the proposal, which is free from the vote of state council; particularly in the

area which will be abused by it. Not only this, but also according to the revised

constitutions of Somali and Harare regional states the proposal of the amendment is

adopted by the exclusive vote of their respective state council. On the other hand, the

Somali state constitution assigns some autonomous power to the ordinary local

government and Harare state constitution recognized Kebele as the lower level of

administration with some powers, whereas these local governments have no any say on

the approval of the amendment. This may cause to violation of their autonomy via state

council through amending the constitution. Thus, these states have to put right their

approval procedure in the way to take part their respective local governments in the

process of approval.

With regard to amendment of human and democratic rights Oromia, Amara, Afare,

Harere, Tigray and Somali regional states exclusively use rules of amendment framed

under the federal constitutions and they expect the decision of federal as well as other

regions’ parliaments. Other like Benshangul-Gumiz, Gambela and SNNP regional states

amend their human and democratic rights if and only if its similar provision in the federal

constitutions is amended. And the amendment, which will be made based on the federal

rules of amendment, will be ratified in line with the rules of ratification framed under

60

each of the three state constitutions. In both cases this self- restricted provision of each

state constitution will directly violate the autonomy of states; it is a mere repetition of

supremacy clause provided both in the federal and each state constitution; it will limit the

opportunities of states to provide better protection of human and democratic right through

amending their constitutions and fails to comply with the principles of democracy.

Owning to this, all state constitutions shall cancel this unnecessary self-restriction

imposed upon their ‘rule of amendment’.

Lastly, concerning to the amendment of “rules of amendment” Amara, Tigray, Afar,

Benshangul- Gumize, Oromia, SNNP and Gambela state constitutions have been

provided the special entrenchment for the ‘rules of amendment’ regulate the amendment

of other provisions of the state constitutions and also for the provision which entrenching

the entrenchment. Different from this state constitution of Oromia provides the special

entrenchment for the ‘rules of amendment’ govern the amendment of other provision of

the constitution but the provision which entrenches this entrenchment is not entrenched.

Similarly, though all state constitutions specially entrenched the amendment of human

and democratic rights, but the provision which entrenches the entrenchment is not

entrenched. Thus the entrenchment will be worthless since political actors can avoid

through double amendment. Owning to this, all state constitution shall leave the

entrenchment made against the amendment of human and democratic rights. Concerning

to the Oromia state constitution, it has to be entrench the entrenching provision itself.

61

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