Various international, regional and domestic laws imposes obligation on the state to respect and protect fundamental human right and freedom. Stated otherwise, government has the duty respect and protect fundamental rights of its subject. Protecting and respecting these fundamental rights of its subject is internationally and regionally recognized principle.
The same principle hold true in domestic law including our country Ethiopia. FDRE constitution under its art 13(1) provides 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 of this Chapter”. As per this provision, all organs of the government be it federal and regional are duty bound to respect and enforce the provisions concerning fundamental right including the right to life. Moreover, they are under the duty to ensure the observance of the constitution and the duty to obey. In this respect, art 9(2) FDRE constitution stipulate that “state that all citizens, organ of the state, political organization, other association, as well as their official have the duty to ensure the observance of this constitution and obey it.”
However, none of these human rights are absolute and without limitation. Thus, none of human right may be applauded without limitation and absolutely and hence, be restricted.
In accordance with international human rights law there are essentially two ways in which the State put aside this international obligation. In other word, there are exceptional circumstance in which state restrict fundamental rights of its citizen. These are limitation and. Derogations.
Thus, this piece examines the status of the right to life as far as derogation of human rights is concerned under FDRE constitution. In doing so, the distinction between limitation and derogation will be put. Some international and regional human right instruments will also be dealt with.
Finally, limitation and derogation of human right under FDRE Constitution will be appreciated with particular reference to the right to life.
Derogation and Limitation of human rights under international human right instruments
We have, somewhere in this piece said, none of human right is absolute and left without limitation. There are some exceptional circumstances that permit restrictions on human right. The most common restrictions are limitation and derogation of human right.
In this regard, different international and regional human right instruments recognize these limitation and derogation principles with different approaches. Nevertheless, the most persistent difficulty is having clear distinction between limitation and derogation.
Derogations are only permitted in exceptional circumstances, when the “life of the nation is at stake”, while limitations to rights may be made to serve certain legitimate aims.
Derogations are only in exceptional circumstances, and only as far as the situation requires and hence they are tentative whereas limitations are common to all right and permanent in nature.
In short, derogations are different form limitations in that they are often temporary and may suspend a right wholly. Limitations on the other hand may be permanent and are meant to perpetually balance the public interest with the rights of individuals and groups; unlike derogations, limitations cannot negate the essential element of a right. Moreover, there is no need for emergencies to justify limitation of rights; but emergencies or crises are condition precedents for the legitimate derogation from or suspension of rights.
Since we do have different approaches as far as limitation of human right is concerned, dealing with the same is beyond the reach of this piece, and our discussion is confined to derogation of human right principle.
Various international and regional human right instruments with the exception of African Charter on Human and Peoples (AHPR) consists of principle of derogation of human right. Inter alia, ICCPR under art 4(1) provide that…
“In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.”
From the reading of this article, we can easily understand that derogation from human right itself is not absolute. In other word, it cannot be claimed arbitrarily and Human rights can only be derogated if and only if the circumstances warrants derogation are satisfied. These are 1. There should be state of emergency that threatens the life of nation. The derogating state bear the duty to prove the existence of emergencies that warrant derogation of human right. Nevertheless, the extent of emergency must be determined case by case. 2. The exigency should be officially declared by the competent organ of the state. Moreover, members of the United Nations Organization are requested to inform the Secretary General, and the other bodies of the organization, whenever a state of public emergency is declared, and to indicate the special and temporary measures taken (ICCPR art 4(3) articulate “Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.”) 3. Proportionality; the state should take derogating measures to the extent necessary to avert the emergency at hand. 4. Inconsistency with other international obligation. The derogating measures should not contradict with other obligation state owed under international laws. The derogating measures should be imposed with the purpose to avert the exigencies that put the life of the nation at risk. 5. Non-discrimination. Derogating measures should not involves discrimination of all nature based on race, colour, sex, language, religion or social origin. 6. Non-derogable rights. This is most important derogation test. Few human rights are not derogable even in a situation of public emergency. The human rights, which are expressly declared non-derogable under the Covenant includes prohibition of torture, right to life, freedom of conscious, religion and thought ‘under any conditions even for the asserted purpose of preserving life of a nation.
Derogation of Human Rights and FDRE Constitution
The Ethiopian Constitution recognizes possibilities that warrant the suspension of protected rights through ratification of international human right instruments and direct incorporation in the constitutional provision. Many of international human right instruments to which Ethiopia is party incorporate derogation principle. This principle has direct force of application via article 9(4) and 13(2) of FDRE constitution. As far as direct incorporation is concerned FDRE constitution under art. 93 clearly incorporate principles of derogation of human right. This derogation is not, however, without limitation and arbitrarily effected. Nevertheless, there are substantive as well as procedural requirements that govern such emergencies. Besides, few rights are not subject to derogation. Article 93 of the Constitution prescribes the requirements all these things. The only conditions that may justify derogations are occurrence of an external invasion, a breakdown of law and order that cannot be controlled by the regular law enforcement agencies and personnel, or the occurrence of a natural disaster or an epidemic. The federal council of minister has the power to declare it.
The Regional States are also allowed to declare state of emergency to avert natural disaster or epidemic within their respective territories. The ultimate power to approve or annul a declaration of emergency made by the Council of Ministers, however, lies with the House of Peoples’ Representatives (HPR). This decision is required to be made within 48 hours if the HPR is in session or within 15 days if the HPR is not in session at the time of the declaration of emergency.
Upon approval by a two-third majority vote, the state of emergency may remain up to six months subject to renewal for up to four months on each occasion through the same procedure.
Derogation of the right to life and its Suspension during State of Emergency: art 93 of FDRE Constitution
It is commonly understandable that human rights are available to all human beings without discrimination of all nature and cannot arbitrarily be restricted. However, restriction are also, in exceptional circumstances, allowed should exigencies that put that put the life of nation at stake takes place.
The Constitution in this regard authorizes the possible suspension of most of the fundamental human rights and freedoms to “the extent necessary” to avert the conditions that required the declaration of a state of emergency. Nevertheless, the constitution put some rights beyond the reach of government despite the existence of state of emergency that impulse for the derogation of Human right. These rights are nomenclature of the state (Article 1) the prohibition against cruel, inhuman, and degrading treatment or punishment, and slavery or servitude, and trafficking (Article 18), the right to equality and equal protection of the law (Article 25), and the right to self-determination up to secession (Article 39).
However, among the lists of rights placed beyond the reach of derogation during the state of emergency, the right to life is omitted. The absence of the right to life among the lists of non-derogable rights during state of emergency may create confusion whether the right to life is derogable or not. This is apparent paradox when one look into the non-derogable rights under international law particularly art 4 of ICCPR to which Ethiopia is party. Article 4(2) of ICCPR put the right life (art 6) as non-derogable right. However, one cannot find similar stipulation under FDRE constitution. Thus, one may ask that does the right to life is derogable one since constitution omitted it from the list of non-derogable rights or non-derogable one by adhering to ICCPR to which Ethiopia is party.
To best of my understanding, the right to life should not be derogable right for two apparent reasons. There is common understanding among the scholars of human right that, in case where there is conflict or contradiction between international and domestic law as far protection of particular right is concerned, priority shall be given to the law that afford better protection to the right at stake. Not only this, it is also well-established principle that state may not invoke its national domestic law to set aside its obligation under international law. Moreover, art 13(2) of the constitution uphold the above assertion by claiming that the provision concerning fundamental right and freedom enshrined in chapter three interalia the right to life is one art (14) and (15) shall be construed inline the principle of international human right instruments Ethiopia ratified.
Thus, if need is arise to give effect to the right to life, priority should be given to the provision of ICCPR that recognizes the right to life as one of non-derogable right. The second reason is that FDRE constitution upholds that everyone has inalienable and inviolable right to life and this right may only be restricted in accordance with pre-determined law. Nevertheless, it failed to categorized this right under the catalogue of non-derogable right while having recognized the right to be free from torture, and inhuman treatment (art 18) and the right to equality (art 25) as non-derogable rights. One may wonder here that does talking about freedom from inhuman treatment and equality hold water while derogation from the right to life which is substrum for all other human right. This is apparent fact to any nonprofessional that all human right we are talking about remains vain of vain in absence of the right to life. To my best knowledge if we uphold that the right to be free from torture and equality are non-derogable right, for strong reason the right to life without which other human right could not be enjoyed should be catalogued as non-derogable right.
Despite the fact that human rights are inalienable and inviolable, these rights are subject to limitation and restriction in some instances. These most common restrictions are limitation and derogation. Different international, regional and national recognizes both limitation and derogation of human rights with different legal effect and scope of application. To mention one, ICCPR under its art 4 provides exceptional instance upon which these rights could be derogated. Moreover, this instrument lists non-derogable rights. These rights includes prohibition of torture, right to life, freedom of conscious, religion and thought ‘under any conditions even for the asserted purpose of preserving life of a nation
However, when one looks into the list of non-derogable under FDRE constitution, she/he may find paradox. Some of what ICCPR lists as non-derogable rights is different from what are listed under FDRE constitution. The typical one is the right to life. Despite the fact that the right to life is recognized as inalienable and inviolable right, FDRE constitution failed to categorize under the catalogue of non-derogable rights.
However, to the knowledge of writer, the right to life under Ethiopia should be non-derogable right. Because, Ethiopia is party to many of international human right instruments that uphold the right to life as non-derogable right that have direct force of application via art 13(2) and 9(4). Moreover, the constitution holds other rights like the right to be free from torture and inhuman treatment, and equality that remain vain without the right to life as non-derogable right. Thus, the constitution that recognized these rights as non-derogable right could have, for strong reason, recognized the right to life as non-derogable right. This might have been slip of pen.