Brief Survey of Ethiopian Laws in Light of the UN Convention on the Rights of the Child

Harmonisation of laws relating to children

Ethiopia

Prepared by Seyoum Yohannes and Aman Assefa

The African Child Policy Forum

PO Box 1179, Addis Ababa, Ethiopia

Tel: +251 (0)116 62 81 92/ 96/ 97

Fax: +251 (0)116 62 82 00

www.africanchildforum.org

www.africanchild.info

Acronyms 3

Introduction 5

Country status 6

Ethiopia and the Conventions 6

Further harmonisation and implementation efforts and their problems 10

Measures taken to harmonise domestic law with the Conventions 13

Existing institutional framework 15

Policies 15

Roleplayers and their coordination 17

Emerging issues 19

Compatibility of Ethiopian laws with major areas of the Convention 19

a. Definition of the child 19

b. General principles 20

c. Civil rights and freedoms 22

d. Family environment and alternative care 24

e. Education 28

f. Rights of children in armed conflict 32

g. Justice for children 34

h. Children in situations of exploitation 38

Reporting status to the UN CRC Committee 40

Conclusions and recommendations 42

Bibliography 45

Appendix: About the authors 48

Acronyms

ACRWC African Charter on the Rights and Welfare of the Child

BOLSA Bureaus of Labour and Social Affairs

CRC Convention of the Rights of the Child

CYFAD Children, Youth and Family Affairs Department

CPU Child Protection Units

ESDP Education Sector Development Programme

ETP Education and Training Policy

FDRE Federal Democratic Republic of Ethiopia

HPR House of Peoples’ Representatives

ILO International Labour Organisation

MCB Ministry of Capacity Building

MOFED Ministry of Finance and Economic Development

MOLSA Ministry of Labour and Social Affairs

NGO Non-Governmental Organisation

NPA National Plans of Action

PHCCO Population and Housing Census Commission Office

UN United Nations

OAU Organisation of African Union

UDHR Universal Declaration of Human Rights

UNICEF United Nations Children’s Fund

Introduction

The Convention on the Rights of the Child (CRC) of 1989 is the first binding international legal document adopted by the United Nations (UN) in relation to child rights. It contributes to the promotion and protection of the rights of the child in many ways. First, the CRC follows a holistic approach to the rights of the child by addressing all matters that pertain to the need, well-being, health, overall development and protection of the child. It deals with all aspects of the rights of the child: civil and political; economic, social and cultural. The convention vastly echoes the interdependence, indivisibility, interrelation and universality of human rights as the UN declared them to be in the Vienna Declaration and Programme of Action of 1993. The African Charter on the Rights and Welfare of the Child (ACRWC), which was adopted under the auspices of the Organisation of African Unity (OAU) and entered into force in November 29, 1999 further entrenches the rights of children. It takes into account the African reality and vests in the child various rights not recognised in the CRC. It also imposes some obligations on the child.

Ethiopia acceded both treaties. It acceded to the CRC without any reservation on the 14th of May 1991. The statement of accession was published in 1992 in the Negarit Gazeta, which was the official law gazette of the then existing Government.[1] It also acceded the ACRWC.[2]

The whole aim of this study is to briefly analyse whether Ethiopian laws are in harmony with the two international child rights instruments. The study also aims at examining how ready the nation is to implement the conventions. It thus looks at the administrative agencies and the coordination among them. Needless to say, a study that compares domestic and international law indispensably demands an analysis of a nation’s practice of domestication of its treaty obligations. This becomes even more important when treaties dealing with human rights are involved. Thus, an attempt has been made to throw some light on the approach to domestication of treaties in Ethiopia. The study also dwells on the place of the two conventions in the hierarchy of laws in Ethiopia. The various organs entrusted with the implementation of the two conventions and their interrelationship has also been focused on briefly. The study then proceeds to examining selected provisions of the two conventions and makes an assessment of Ethiopian laws for compatibility with them.

Country status

Ethiopia and the Conventions

As stated above, Ethiopia is a party to the two treaties being considered in this document. However, this needs to be analysed in legal terms given the hierarchy of laws in the Ethiopian system. The present Ethiopian Constitution,[3] which came into force in 1995, answers this question.[4] Two of its many provisions, articles 9(4) and 13(2), are relevant for the present query. They read as follows.

Article 9(4): - All international agreements ratified by Ethiopia are an integral part of the law of the land.

Article 13(2): - The fundamental rights and freedoms specified in this chapter shall be interpreted in a manner conforming to the principles of the Universal Declaration of Human Rights, International Covenants on Human Rights and International instruments adopted by Ethiopia.

Article 9 (4) is a constitutional provision providing for the incorporation into Ethiopian laws of international agreements to which the nation is a party. It simply, but quite powerfully, declares that they become laws of the land upon ratification. The CRC and ACRWC, as treaties, were acceded to by the Ethiopian government and therefore become integral parts of the domestic laws of Ethiopia. The Amharic[5] version of the constitution, which is the governing version, makes it clear that what was intended is both treaties acceded to and ratified.

In relation to international agreements two issues need to be raised. The first issue, which transpires from Article 9 (4), is related to the place of international agreements in the hierarchy of Ethiopian laws, and the second one pertains to whether or not, given the federal type of Ethiopian state structure, international agreements are binding on the regional states. As far as the second question is concerned it is clearly provided in Article 50 (8) of the constitution that regions must respect the powers given to the Federal Government, one of which, per Article 51 (8) is the power to negotiate and ratify international agreements. This implies states cannot reject an international agreement duly concluded and ratified by the Federal Government. As shall be discussed in the third part of this study, there is even stronger reason to hold that States are directly bound when the agreement under consideration is an international human rights treaty.

Coming to the first issue of where to place international agreements in the hierarchy of Ethiopian laws, it is not a question, which can readily be answered. But, the question becomes easier to answer when it comes to international human rights covenants. This is due to Article 13(2), which binds anyone applying the constitutional human rights provisions, to interpret them ‘in a manner conforming to’ existing international human rights instrument to which Ethiopia is a party. This solution allows us to elevate international human rights agreements binding Ethiopia to a status equal to the constitution. But, one might rightly argue that resorting to the international sphere is allowed only when the constitutional sphere is found to be ambiguous. It is only then that interpretation is justified.

Besides giving us a sufficient clue about the place of the CRC and ACRWC in Ethiopian laws, Article 13 (2) aims at making international conventions on human rights the standards for the interpretation of the constitution’s chapter dealing with human rights and fundamental freedoms. In other words, the standards of protection of the human rights guaranteed in the constitution have to be tested against the international standards set by the Universal Declaration of Human Rights (UDHR) and the various conventions and covenants ratified by Ethiopia. As one of the human rights conventions ratified by Ethiopia, the Conventions (both the CRC and the ACRWC) therefore are not only part and parcel of the domestic laws of Ethiopia with a place high up in the hierarchy, but also authoritative guidelines for the interpretation of the rights of children guaranteed by the constitution.

As will be discussed in the other sections of this study, the FDRE Constitution also embodies some rights pertaining to the child, which are enshrined as fundamental in both the CRC and ACRWC.[6] The relevant constitutional provision in this regard is Article 36. It guarantees the child the right to life, the right to a name and nationality, the right to know and be cared for, the right to be protected against exploitative practices, the right to be protected from cruel and inhumane punishment, the best interests of the child to be the primary consideration in making policies and enacting laws, special protection measure for juvenile offenders and so on. As the constitution was drafted and adopted after Ethiopia ratified the CRC, it is possible that the latter may have influenced the drafting of Article 36.

In conclusion it can safely be asserted that the FDRE Constitution has very well incorporated both the CRC and ACRWC in a solid way. It has integrated them into the domestic laws of Ethiopia; it has elevated them to the status of interpretive guidelines; and it has embodied some of their parts in the text of the constitution itself.

Federal and state legislative, judicial and executive organs should enforce the FDRE Constitution, which is the supreme law of the country, together with the international human rights agreements it has made part of itself.[7] But, aside from other practical and institutional problems, the issue of enforcement of conventions in general, and human rights conventions in particular, raises two problems in Ethiopia.[8] The first is the confusion regarding the method of incorporation of international agreements into Ethiopian law. The other has to do with the absence of meaningful implementing legislations for those requiring that for their enforcement.

It is widely known that states follow either the monist or dualist approaches to the incorporation of international agreements.[9] The former is based on the principle that international and domestic laws have identical sources, subjects and substantive contents. Hence, domestic courts can directly invoke and apply international agreements without the need for an “enabling legislation” from the domestic legislature, say in some instances when the treaty itself requires that. The dualist approach on the other hand asserts that international law and municipal laws have different subjects and operate on different planes, thus requiring at all times a ‘domestic version’ of the treaty, which is carried out by either annexing the treaty to an enabling legislation or rewriting it.

The Ethiopian practice with regard to incorporation does not appear to have a theoretical basis.[10] The practice however seems to suggest the monist method is followed even though that is not at all certain.[11] International agreements are incorporated into Ethiopian law by a single act of ratification without reproducing the text of the treaty. The treaty making practice of the country shows that it is only the OAU Establishment Charter that was reproduced in the Negarit Gazeta.[12] In all other cases, statement of ratification is the only information that is published in the Negarit Gazeta after the legislative body decides to ratify a treaty. Arguably, this in effect means that a treaty in the original version automatically becomes the law of the land, and binding, as soon its ratification is published. Though the theoretical framework is somewhat as described above, the lack of court decision on disputes arising from treaties makes the assertion open to doubt.

When a treaty is ratified this way, the courts are left without a clue as to its contents. To begin with, obtaining the text of the treaty is difficult. What is more, even if that difficulty is surmounted the treaty will not be available in the languages in which the courts do their job. It is quite proper at this juncture to recall that courts in Ethiopia are required by law to take as law only those letters that appear in the official law gazettes,[13]. This worsens the confusion since only the statement of ratification is published. As a result, courts may hesitate to apply human rights treaties.

Even if courts wish to apply international human rights treaties including the CRC and ACRWC, the lack of implementing legislation, or some means of making official versions of treaties available, will pose a serious problem unless the legislature makes the necessary intervention.

Some rights in international human rights instruments are not formulated in a way they can be invoked in courts of law. They are referred to as ‘non-self executing’ or ‘non-justifiable’ rights. Where rights are formulated in such way (for instance the provisions of the International Covenant on Economic Social and Cultural Rights and the economic and social rights part of the CRC and ACRWC fall in this category) the legislative body should enact implementing legislations that make them enforceable in courts of law. The absence of such implementing legislations, which so far has been the case in Ethiopia, is contrary to the obligations of Ethiopia under both the CRC and ACRWC. States have the obligation to set up the necessary legal framework to implement the conventions. As will be discussed in the coming sections, the implementation of such rights, which normally is impeded by resource constraints in countries like Ethiopia, is not expected to be prompt, but rather progressive. Nonetheless, the Conventions also expect rights of such nature to be justifiable whenever and to the extent that their realization is compatible with available resources. The notion that these rights are beyond the reach of courts is anathema to the established jurisprudence of human rights.[14]

Summing up, the problem is partly theoretical since, as has been discussed, the nation’s practice of assimilation of treaties is not definitively known; and, partly it is practical since within the disputed theoretical framework some meaningful things could have been done to aid the implementation of the CRC and ACRWC, and other international human rights instruments. In this regard, the legislature should establish a system that makes official texts of treaties available to courts in various languages, so that they could apply them.

Further harmonisation and implementation efforts and their problems