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Implication of Ethiopian Federalism on the Right to Freedom of Movement and Residence: Critical Analysis of the Law and the Practice

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Implication of Ethiopian Federalism on the Right to Freedom of Movement and Residence: Critical Analysis of the Law and the Practice Implication of Ethiopian Federalism on the Right to Freedom of Movement and Residence: Critical Analysis of the Law and the Practice By Yonas Girma Adimassu A Thesis Submitted to Addis Ababa University College of Law and Governance Presented in Partial Fulfillment of the Requirements for Masters of Constitutional and Public Law Addis Ababa University, Addis Ababa Ethiopia March 2013 1 DECLARATION I, Yonas Girma, hereby declare that this dissertation is original and has never been presented in any other institution. To the best of my knowledge and belief, I also declare that any information used has been duly acknowledged. LL.M Candidate Name: Yonas Girma Signature: ___________________ February 2013. This dissertation has been submitted for examination with my approval as University supervisor. Supervisor: Ass. Prof Abera Degefa Signature: _____________________ Date: March 2013. 2 Acknowledgment First and for most I would like to thank the almighty God and his mother Saint Virgin Mary for all what happened to me. I would like to express my deepest gratitude to my advisor Mr. Abera Degefa for his speedy and diligence constructive comments and suggestions on this thesis. I owe you sir! I have to confess that I would not have come this far in the absence of your support! I am also grateful to all personalities who have been voluntarily reacting for my interviews and for their valuable suggestions which made the paper more comprehensive. My gratitude also extends to all the offices and their respected staffs for their dulcet contributions by providing the necessary information and materials which I was in need of. My sincere thanks also go to Kalkidan Kasseye, Gezu Ayele, Beeminet Mohamed and others for their valuable contribution by providing relevant comments, suggestions and materials. I would also like to extend my deepest gratitude to all my family members my mother Tsigie Bogale, my father Girma Admassu, My brothers Elias, silamilak, Neway and my sister Hiwot. Special thanks go to my beloved fiancé Senait Asmamaw who stood beside me in those days of trouble. Love you! Many thanks for all who wished my success!!! 3 Acronym ANRS Amhara National Regional State ART Article CCI Council of Constitutional Inquiry CERD Convention on the Elimination of Racial Discrimination CUD Coalition for Unity and Democracy ECOWAS Economic Council of West Africa States EHRCO Ethiopian Human Right Commission EIO Ethiopian Institute of Ombudsman EPRDF Ethiopian People Democratic Front FDRE Federal Democratic Republic of Ethiopia HoF House of the Federation ICCPR International Convention on Civil and Political Rights MoFedAf Ministry of Federal Affairs OLF Oromo Liberation Front ONLF Ogaden National Liberation Front ONRS Oromia National Regional State OPDO Oromo People Democratic Organization SNNPRS South Nation Nationalities and Peoples of Ethiopia SNRS Somali National Regional States UDHR Universal Declaration of Human Rights UN United Nation ICERD International Convention on the Elimination of Racial Discrimination 4 IDPs International Disability Persons NGO None Governmental Organization OAU Organization of African Unity AU African Union ACHPR African Charter on Human and Peoples’ Rights AEUP All Ethiopians Unity Party 5 Abstract The FDRE constitution has established ethnic federal arrangement in one hand and incorporates everyone’s right to freedom of movement and residence everywhere within Ethiopian territory on the other. Besides this, ethnic self determination has established as a cornerstone of the federal system. But, there is no any single study has conducted to look at the practical serene coexistence of Ethiopian federal system and the right to freedom of movement and residence. Thus, the main issue addressed in this paper is whether the federal system has implemented properly in congruent with the right to freedom of movement and residence of individuals in Ethiopia. The thesis has also tried to explore whether the institutions put in place to safeguard the right to freedom of movement and residence has worked efficiently and effectively by way of giving the required remedy in case of violation. In doing so the writer has analyzed cases with integrating interview responses as well as explores other countries experiences. After conducting serious analysis, the writer has, eventually, reached to the following findings: ethnic federal setup of Ethiopia has practically negative implication on the right to freedom of movement and residence; ethnic based political parties are also responsible for the violation due to their contribution to the increasing ethnic consciousness of the society. Governmental safeguard institutions are not properly safeguarding this right from the pitfall of Ethiopian ethnic federal system; Misuse of ethnicity for political game by the ruling EPRDF party has aggravated the impact of ethnic federal system on the violation of such freedom. 6 Table of Contents Contents page Declaration ………………………………………………………………..…………..i Acknowledgment……………………………………………………….….………….ii List of Acronyms……………………………………………………………………..iii Abstract……………………………………………………………………….………v Table of contents………………………………………………………………..…....vi Chapter One: Back Ground of the Research 1.1. Back Ground of the Study……………………………………………………….……1 1.2. Literature Review……………………………………………………………….……..3 1.3. Statement of the Problem………………………………………………………….…..5 1.4. Objective of the study…………………………………………………………………6 1.5. Research Questions……………………………………………………………………7 1.6. Significance of the Study……………………………………………………….……..8 1.7. Research Methodology…………………………………………………………….….8 1.8. Scope and Limitation of the Research………………………………………….……..9 1.9. Ethical Considerations……………………………………………………………….. 9 1.10. Structure of the Research…………………………………………………………….10 Chapter Two: Conceptual and Theoretical Framework of Federalism 2.1. Introduction…………………………………………………………………………11 2.2. What is Federalism?...................................................................................................11 2.3. Federalism and Federations…………………………………………………………13 2.4. Taxonomy of Federalism…………………………………………...……………….14 2.4.1. Coming Together Vs Holding Together Vs Putting Together Federalism………………………………………………14 2.4.2. Symmetrical Vs Asymmetrical Federalism………………………………...……16 2.4.3. Dual Vs Cooperative Federalism…………………………………………...……17 2.4.4. Territorial Federalism Vs Personal Federalism………………………………….18 7 2.5. Ethnicity and Ethnic Federalism………………………………………………………..19 2.5.1. Ethnicity………………………………………………………………………….20 2.5.2. Ethnic Federalism………………………………………………………………..21 2.6. The concept of self determination …………………………………..…………….….23 2.7. Conclusion………………………………………………………………………………24 Chapter Three: The Right to Freedom of Movement and Residence 3.1. Introduction…………………………………………………………………………..26 3.2. Conceptual and Theoretical Framework of the Right to Freedom Of Movement and Residence…………………………………………………………………………….26 3.2.1. What is Freedom of Movement and Residence?.........................................................27 3.2.2. The Scope of the Right to Freedom of Movement and Residence…………………..28 3.2.3. Limits of the Right to Freedom of Movement and Residence………………………29 3.2.4. Theoretical Foundation of the Right to Freedom of Movement and Residence……………………………………………………………32 3.2.4.1. The Theory of common ownership of the Earth…………………………...32 3.2.4.2. The Theory of an Ethics of Cosmopolitanism……………………………..32 3.2.4.3. Natural Right Theory………………………………………………………35 3.2.5. Government Responsibility in Protection of Freedom of Movement and Residence………………………………………………35 3.2.5.1. Obligation to Respect……………………………………………………….35 3.2.5.2. Obligation to Ensure/Protect………………………………………………..36 3.2.5.3. Obligation to Promote………………………………………………………36 3.2.6. Significance of the Right to Freedom of Movement and Residence for other Human Rights protection………………………………………..………...37 3.3. International Legal Sources of the Right to Freedom of Movement and Residence…………………………….……………………………..38 3.2.1. Universal Declaration of Human Rights(UDHR)..………………………………38 3.2.2. International Covenant on civil and political rights………………………………39 3.2.3. International Convention on the Elimination……………………………………..39 8 of all Forms of Racial Discrimination……………………………………………39 3.2.4. Convention on the Elimination of All Forms of Discrimination against Women (1979)…………………………………………………………………..…………40 3.2.5. ILO Regulation on Freedom of Movement for Workers within the Community………………………………………………………………………………………………………………….40 3.2.6. General Comments………………………………………………………………40 3.2.7. African Charter on Human and People’s Rights…………………………………42 3.2.8. American Convention on Human Rights…………………………………………43 3.2.9. ECOWAS Protocol Relating to Free Movement of Persons, Residence and Establishment…………………………………………………….43 3.3. International and Regional Supervisory Machinery and Compliant Procedures for the Instruments Dealing with the Right to Freedom of Movement and Residence………………………………………………………………………………44 3.3.1. Human Rights Committee…………………………………………………………….44 3.3.2. The African Commission on Human and Peoples’ Rights……………………………45 3.3.3. The African Court of Justice and Human Rights (ACJHR)…………………………..45 3.4. Conclusion……………………………………………………………………………...46 Chapter Four: Federalism and the Right to Freedom of Movement and Residence in Ethiopia 4.1.Introduction…………………………………………………………………………………48 4.2.Historical Background of Federalism in Ethiopia…………………………………………...48 4.3.Ideological Basis of Ethiopian Federalism…………………………………………………..52 4.4.Salient Features of Ethiopian Federalism……………………………………………………54
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