HANDOUT SIX

UNIT SIX: HIERARCHY OF LAWS UNIT OBJECTIVES

5.1) HIERARCHY OF LAWS UNDER THE UNITARY FORM OF ETHIOPIA

Under this topic, we will be discussing hierarchy of laws in the 1955 Revised Constitution and
the 1987 Constitution of the People’s Democratic Republic of Ethiopia. Both these constitutions
established the unitary form of government in Ethiopia.

5.1.1) THE HIERARCHY OF LAWS UNDER THE REVISED CONSTITUTION OF 1955

AND THE PDRE CONSTITUTION OF 1987[Ayele Bogale; 1999: 23-60]

Though the present constitution is basically different from its predecessors in its approach
of treating the status of laws, since we can not divorce the past from the present in most
cases it would be worthwhile, if not indispensable, to have a bird’s eye view of the status of
laws under the 1955 Revised Constitution and the 1987 PDRE Constitution.

A) HIERARCHY OF LAWS UNDER THE REVISED CONSTITUTION OF 1955

With regard to hierarchy of laws, Art. 122 of the Constitution declared that all primary and
subordinate legislations were inferior to the Constitution. Thus, “in the hierarch of laws, on
top is the Constitution and below are other legislation. Accordingly, one can understand the
hierarchical relation of the laws under the Revised Constitution by reading Arts 122 and 64 of
the said Constitution. The latter reads as: “every one in the empire has the duty to respect and
obey the Constitution, laws, decrees, Orders and regulations of the Empire.” Here, the laws
are mentioned in hierarchical order from the higher to the lower. It is clear that the Constitution
is on top and other legislation are below. Pursuant to this Article, all citizens were primarily
bound by the Constitution of 1955. Thus, their acts should be consistent to it. The supremacy of
the Revised Constitution could also be understood from the oaths that the officials of the then
government used to take under Arts. 20 through 251 of the Constitution. While taking the oath
they were required to promise to respect and defend the Constitution.

Which one does prevail if conflict arises between international treaties and the
Constitution? One may argue that the latter (i.e. the Constitution) should prevail, because the
Constitution is deemed to be the direct expression of the people and they all acts of what
ever their kind should be consistent to it.

B) TYPES OF LEGISLATION AND THEIR HIERARCHY UNDER THE REVISED

CONSTITUTION OF 1955

Legislation can be categorized as primary and subordinate. The former, that is primary
legislation are laws that are made by the legislative body, that is, by the House or Houses of
parliament as the case may be. Thus, in the case, under consideration, Chamber of deputies and
senate of Ethiopia made such laws.

Under the Revised Constitution of 1955, primary legislation include proclamations, decrees,
and Orders, which were made by the Emperor himself.
Although both proclamations and decrees were under the category of primary legislation,
in so far as proclamations were enacted by the concordant wills of the two supreme law
making bodies (Parliament and Emperor), they assumed supremacy over decrees. Because
the latter was made by a single will that is, only by the will of the Emperor pending decision on
them by the Parliament. Nevertheless, this was true only until the time that they were
upgraded to the status of proclamations by the approval of the Parliament.

Legislation were not only of primary nature, they were also subordinate in character. In the
words of Salmond; Subordinate legislation [are]that which proceed from any authority
other than the sovereign power and [are] there fore dependent for [their] continued
existence and validity on some superior or a supreme authority. They may be regarded as
having their origin in a delegation of the power of parliament to inferior authorities, which in the
exercise of their delegated function remain subject to the control of sovereign legislator.

In other words, subordinate (subsidiary) legislation are those administrative orders and
regulations which are made by executive authorities having derived their law making power
from the legislator by way of delegation. Thus, so long as the executive authorities are
granted the power to enact such laws by the legislator the laws made by them should be
consistent to the laws enacted by the legislator.

Subsidiary legislation at the time under consideration covered: orders, which were made by
each ministry; regulations; legal notice; general notice; and notice of approval. Orders made
at that time were of two types. They were those with the capital letters and passed by the
Emperor himself and those with the small letters, which were issued by the office of each
ministry. The one, which was made by the Emperor by his prerogative power as provided
in Art 27 of the Constitution, was not categorized under this type of legislation. Since the
Emperor was empowered to enact this type of order by the Constitution and thus it belonged to
the group of primary legislation. Therefore, the type of order, which fell under the category of
subordinate legislation, was the one, which was mentioned in Art. 144 (ministerial order) of the
Constitution.

Like orders, regulations were mentioned under Art. 64 of the Constitution. Although, the
other types of legislation such as legal notice, general notice and notice of approval were not
clearly indicated in the Constitution, they used to appear in the a Negarit Gazetta having the
force of law.

5.1.2) HIERARCHY OF LAWS UNDER THE PDRE CONSTITUTION OF 1987

The Constitution as the basic law is regarded to be the source of all laws and thus those
laws which derive their validity from it have to be in full ordinance with the sprit of the
constitution. Conformably to this, Art. 118 of the PDRE Constitution declared that it was
superior to all other laws. The PDRE Constitution was binding on all departments and offices of
the government and hence any act made by them in Contradiction of the said constitution would
be invalid.

Under the PDRE Constitution, the supreme organ of state power was the National “Shengo
(Art .62 of the PDRE Constitution). Thus, the Constitution in its Art .63 granted it the power to
enact laws on matters of national interest. However, the fact that National Shengo was
empowered to determine on all issues having national importance does not mean that it was free
from any constitutional limitation. This limitation can be understood from the declaration of the
Constitution itself [Art 118]. In effect, this organ was subordinate to the PDRE Constitution.
Hence, all laws made by it were also subordinate to the Constitution.

Unlike the Revised Constitution, the PDRE Constitution did not grant international
treaties the status of supreme law. With respect to treaties Art. 82(1) (D) of the Constitution
stated that the Council of State would, “ratify and denounce international treaties.” Thus, from
this provision it is possible to say that international treaties under the PDRE Constitution
were on equal footing with the decrees proclaimed by the Council of State. This is because
they came into application by the act of this organ, that is to say, by the ratification of the
Council of State. As a result, the Constitution alone was superior to all laws including
international treaties.

The other point that can show the special position of the Constitution is its formal aspect. This
aspect includes the adoption and the amendment of the Constitution. However, the method by
which the Constitution is adopted is not the same. It can be adopted either by referendum or by
the constitutional assembly or by the act of the legislator as the case may be. In this regard, even
though the majority of the (socialist) constitutions have been adopted through the normal
legislative procedure in the normal legislative body, the 1987 PDRE Constitution was adopted
by referendum.

Like in the case of its adoption, the amendment of the Constitution also differs from the
normal law making process. It requires a qualified majority of vote in the legislative body.
In like manner, the PDRE Constitution provided a special majority of vote under Art. 119 of the
same. It says, “The constitution of the people’s democratic republic of Ethiopia may be amended
only by a three fourth majority decision of the members of the National “Shengo”. Therefore,
from all these points we can understand that the PDRE constitution was on top on the ladder of
hierarchy.

What were the legislation and their hierarchy at that time?

We have seen in the preceding part of this material that the National “Shengo” was the supreme
legislative body. Consequently, the laws enacted by this body and by its standing bodies (the
President and Council of State) constituted the primary legislation and thus they stood
second in hierarchy to the Constitution. The forms of legislation passed by those organs
included proclamations, which were enacted by the National “Shengo”, decrees and special
decrees, which were made by the Council of State and decrees and special decrees that
were enacted by the office of the President. However, the fact that all these types of legislation
were under the category of primary legislation does not imply that they were on equal footing in
hierarchy.

The hierarchy between such laws can be seen in connection with the power relationship
that existed among the makers themselves. Thus, for our purpose, we need those powers the
national “shengo”, the Council of States and the Office of the President. Accordingly, one can
understand from the close reading of chapters nine, ten and eleven of the PDRE Constitution that
the National “Shengo” was the highest authority and the other two (the Council of State
and the President of the Republic) were accountable to it. As a result, the legislation made by
the National “Shengo” (Proclamation) were superior to the other legislation (decrees and
special decrees) passed by the Council of State and by the Office of the President.

Since proclamations were enacted by the superior organ(National Shengo), they were superior to
decrees ands special decrees.

However, the supremacy of the proclamations over the presidential special decrees and the
special decrees of the Council of State was not always true. Because there were certain
circumstances in which such decrees came to have equal authority with the statutes enacted by
the National “Shengo” These special decrees were enacted by the Council of State and by the
President of the Republic as provided in Arts 83 of the PDRE Constitution respectively. As
stated in the Articles, both the special decrees of the Council of State and of the President were
issued when compelling circumstances necessitated their issuance. The issuance of these decrees
was done between the sessions of the National “Shengo”.

According to Art, 83 (3) of the constitution, the special decree of the Council of state should
be transmitted for consideration by the National “Shengo” at its next session. This was also
held well in the case of the special presidential decrees [Art 87 (2) of the PDRE constitution].
Therefore, after consideration, if the National “Shengo” approved such. Special decrees to be
upgraded to proclamations, they would appear in the Negarit Gazetta, in the form of the
said legislation (Proclamations). However, if the “Shengo” refuted them, they would cease to
continue in force.

Contrary to this, ordinary decrees those were legislated by the Council of State and by the
President in accordance with Arts. 82 and 86 of the Constitution consecutively were lower
in hierarchy than the proclamations and the special decrees of the Council of State and of
the President. Both the Council of State and the President were conferred with the power to
make such decrees at any time when legislation of such types were required for the exercise of
their powers and duties given to them under the Constitution. For this reason, the two organs
were not expected to submit those decrees to the National “Shengo” for approval.

What was the hierarchy, if any, between the decrees and the special decrees made by the Council
of State, on the one hand, and the decrees and the special decrees passed by the President, on the
other hand? As indicated in the foregoing discussion, both the Council of State and the President
were the standing bodies of the National “Shengo”. Therefore, it seems that the two organs
(Council of State and the Office of the President) had equal rank in the power order. For
this reason, their relationship was not vertical but rather it was horizontal.

Art 92(1) of the PDRE Constitution authorized the Council of Ministers to issue regulations
and directives. Therefore, in such a case so long as the Council of Ministers did not derive the
right to do so from the primary legislation (proclamations), the regulations issued by it were non-
derivative and thus they fell with in the group of the primary legislation. Never the less, the fact
that such regulations were categorized as primary legislation does not show us that they had
equal status with proclamations. What made them primary legislation was their being
enacted by the organ empowered to do so by the Constitution, nothing else
Regarding the position of these regulations on the ladder of hierarchy of laws, we can say that in
so far as the Council of Ministers was lower in the power order than the National “Shengo” and
its permanent bodies (sections) the laws enacted by this organ were subordinate to the
proclamations and decrees of whatever kind they be. Moreover, the Council of Ministers and
each ministry had the right to issue regulations and directives. However, their position on the
ladder of hierarchy was below the non derivative regulations issued by the same organ
(Council of Ministers).

In addition, the “Shengo” of the administrative or autonomous regions at the time under
discussion were empowered by the Constitution of the PDRE to issue directives. Their right to
issue the directives was provided in Art, 97 (2) and (4) of the Constitution. Thus, so long as the
“Shengos” of the administrative or autonomous regions derived their power to issue those
directives from the Constitution itself, such legislation were non- derivative in character.
However their being non-derivative in character did not make them higher or equal in
hierarchy with any legislation enacted by the central authorities. This is because, in a
unitary state, there is only one central system of government, parliament, cabinet, head of
state, high court e.t.c. The powers and duties of the organs of this system of government cover
in principle, the whole territory of the country in all administrative levels.

All state’s organs below the level of the central system of government are organs of local
government and there for subordinate to the central organs.

Therefore, the directives issued by the “Shengos” of the administrative or autonomous

regions were even lower in hierarchy than the derivative regulations and directives issued
by the Council of Ministers and each ministry.

5.2) THE HIERARCHY OF LAWS WITH IN THE PRESENT LEGAL STRUCTURE OF

ETHIOPIA

The Constitution of 1994 guaranteed the peoples, nation and nationalities of Ethiopia their right
to self-determination and put an end to the long-lived unitary form of government. Thus,
Ethiopia adopted a federal state structure

Under the present federal structure, the nine autonomous states which constitute FDRE,
enjoy the right to have their say on their own affairs. Hence, they have their own laws made
by their own state councils in the same way as what the central government does have.
Thus, we do have two sets of laws: State’s and federals. Accordingly, we will see the
hierarchical relationship of the states/regions/ and the federal government.

5.2.1) THE SUPREMACY OF THE FDRE CONSTITUTION

A federal constitution is a covenant of the union by which federal relationship is established. So

as to make this relation perpetual, the covenant should be reduced to a written document.

Furthermore, in order to avoid misunderstanding arising there from, the terms of the agreement
should be simple and understandable.
The federal constitution, being the source of powers of both the central and the regional
governments, is believed to be the supreme law. In the original sense of the term as used by
Bryce, it is “rigid”. So as to say that a constitution is supreme, we need to see its declaration to
the effect that the power of the legislator to alter the constitution is either limited or non existent.
In this respect, the federal constitution usually embodies a provision, which prohibits both the
legislators of the whole country and of the parts to alter the constitution unilaterally. The
supremacy of the constitution and its rigidity are the essential characteristics of the federal
constitution and they are also the manifestations of the idea of federalism itself.

The 1994 FDRE Constitution in its Art 9(1) states that the Constitution is the supreme law of
the land. It reads as “any law, customary practice, and act of an agency of government or
official act that contravenes the Constitution is invalid.” In this Article, the phrase “any law”
is used to cover all laws, which are now in force both at the central and at the regional levels.
This can be understood from the reading of Arts. 50 through 55 in conjunction with Art. 9(1) of
this Constitution. Therefore, the Constitution of the FDRE is superior to all federal and state
laws including the state constitutions. This Constitution is binding on all the authorities of
both the federal and of the regional states [Art 9(3) of the Constitution]. Hence, all acts
made by their authorities in contravention of the supreme law are invalid.

Pursuant to Art. 9(4) of the Constitution, all international agreements ratified by Ethiopia are
integral parts of the laws of the country. According to this sub-Article, since international
treaties (agreements) are part of the laws of Ethiopia, they should be included under the
phrase “any law” in sub-Article one of the present Article. We have said above that the said
phrase is used to cover all laws (federal and state) that are subordinate to the Constitution. Thus,
it would be fair to conclude that international treaties, being part of those laws, are lower
in hierarchy than the Constitution.

By virtue of Art 13(2) of the FDRE Constitution, the chapter on fundamental rights and
freedoms:

Shall be interpreted in conformity with the Universal Declaration of Human Rights,

international human rights covenants, humanitarian convention and with the principles of
other relevant international instruments, which Ethiopia has accepted or ratified.

Does the declaration of the above sub-Article make the international instruments mentioned
superior or equal in hierarchy to the Constitution? If it does so, does not it contradict the
conclusion that we have arrived at, in the proceeding paragraph, which says that international
agreements are positioned below the Constitution on the ladder of hierarchy?

Of course, the inclusion of the term “conformity” under Article 13(2) of the FDRE Constitution
makes some people understand the position of international instruments indicated under
the said sub-article as equal as the Constitution of FDRE. In support of this position,
Kenenissa said that, “one possible way to come out of this /dead lock/ is to make the
international human rights instruments as supreme as the Constitution.” However, while saying
this, he did not make clear as to when they become as supreme as the Constitution. Nevertheless,
can one say from the reading of Article 13(2) of this Constitution that the international
instruments are paramount to the provision under chapter three of the same in all cases? Or does
the “conformity” in Art 13(2) of the same imply that the provisions dealing with the
fundamental rights and freedoms under the 1994 FDRE Constitution must conform to the
instruments in question even there is no need for interpretation? As can be understood from
this short discussion, the position of Kenenissa seems to answer the above question in the
affirmative. In dealing with this issue, he tended to give more emphasis to the “conformity” than
the “interpretation”. Accordingly, his stand appears to make the instruments in issue as
supreme as the Constitution of FDRE even when there is no need for interpretation.

However, in the opinion of Ayele, Art 13(2) of the Constitution does not make the international
instruments paramount to the provisions under chapter three of the same in all cases. Because as
it is clearly provided under Art 13(2) of the PDRE Constitution, the need to conform to those
“international standards for the bill of rights” is required only in case of interpretation. In
other words, such international standards are used as references when the provisions under
the chapter on fundamental rights and freedoms of the Constitution become vague,
ambiguous, equivocal, etc. Because it is, in such cases, that the rule of interpretation comes into
application. However, if the provisions under chapter three of the Constitution become clear, the
reference to the said instruments is not required. Therefore, Art 13(2) of the FDRE Constitution
is there to serve for the sake of clarity but not to create contradiction with the basic principle
enshrined under Art 9(1) of the same. In short, Ayele seems to conclude that the Constitution is
superior.

5.2.2) THE STATUS OF INTERNATIONAL TREATIES VIS-À-VIS OTHER

DOMESTIC LAWS

As we have discussed in the preceding part of this material, the status of international treaties
under the present legal system of Ethiopia is not clear. Thus, it is only by interpretation
that we can determine their position.

In respect of the status of treaty in our present legal structure, Ayele has already reached on the
conclusion by reading Art 9(1&4) of the FDRE Constitution that they are subordinate to the
Constitution. However, this Article except stating in its sub-Article four that international
agreements are the integral part of the laws of Ethiopia, it does not indicate as to where
their position lies in relation to other laws (federal and state). As said before, in case, where
determining hierarchy of laws is difficult, it is submitted that the identification of the power
order of the respective makers is of great importance. Thus, in order to know the status of
treaties in Ethiopia, it is significant to identify the organ empowered to ratify treaties.

As it is clearly indicated in the Constitution of the FDRE, the House of Peoples’

Representatives is conferred the power to ratify international agreements negotiated and
signed by the Council of Ministers [Art. 55(12) of the FDRE Constitution].

This organ is also empowered by the Constitution to enact proclamations (federal statute)
[Art 55 of the same]. Thus, both treaties and proclamations come in to force by the act of
this organ. Hence, now a question may arise with regard to the hierarchy between the treaties
and proclamations. To put it in question, which one is superior in hierarchy between the treaties
and proclamations? Which one is superior in hierarchy when conflict arises between the two?
When laws are passed by the same body, the rule is that such laws are on equal stand on
the ladder of hierarchy. Therefore, so long as international treaties and proclamations are
ratified and enacted by the same body (the House of Peoples’ Representatives), they have
equal status on the ladder of hierarchy.

However, in order to say that international treaties have such position on the ladder of hierarchy,
they have to be concluded in accordance with and the spirit of the Constitution of FDRE. In this
regard, the present Constitution in its Art 86 asserts that international agreements concluded
in the promotion of the external relation should respect and accord with the sovereignty of
Ethiopia and the interest of its people. On this point, Dr. Fasil[1997] wrote: “taking a lesson
from history, the Ethiopian Constitution insists on making it a matter of record that the
promotion of foreign relation must accord with the interest of peoples of Ethiopia”. Therefore, it
is only so long as they conform to the declaration of Article 86 of the Constitution that
international treaties being ratified by the same body which enacts the proclamations that they
can stand equal in hierarchy with the latter. In such a case, if conflict arises between the two
(treaty and proclamation) the one which is subsequent in time prevail over the other which
is prior in time.

It is essential to note that proclamations are normally higher in hierarchy than other
federal legislation. Thus, in so far as we have reached on the conclusion that proclamations
and treaties have equal status on the ladder of hierarchy, Ayele argues that those laws that
are subordinate to the proclamations are also inferior to international treaties.

Is there a hierarchical relationship between international agreements and state/regional

laws?

As already mentioned above, the FDRE Constitution does not clearly show the relation of
international treaties with the other domestic laws including laws of regions. However,
although there is no a clear indication in the Constitution as regards the relation between
international treaties and state laws, to the opinion of Ayele, the reading of chapter five of the
Constitution is of some help to this effect. In its chapter five, the Constitution states that the
federal government “shall negotiate and ratify international agreements”[Art 54(8) of the
Constitution]. Hence, the making of international treaties falls under the exclusive
jurisdiction of the federal government. In a federal system, there is no a superior and
inferior relation of laws that are enacted on matters falling under the federal and the state
lists. Similarly, in so far as international agreements fall under the federal list, we can not
establish a hierarchical order between such agreements and the state laws. Nevertheless,
since the 1994 FDRE Constitution imposes the states the duty to respect the federal power,
international agreements that are negotiated and ratified by the federal authorities are not
affected by the state laws.

5.2.3) FEDERAL LEGISLATION AND THEIR HIERARCHY

As already mentioned in the foregoing part of this material the position of federal legislation on
the ladder of hierarchy is below the federal Constitution. We have seen that primary
legislation normally refers to the enactments made by the supreme legislative organ of the
country to which it belongs. Therefore, in our case, federal statutes (proclamations)
enacted by the House of Peoples’ Representatives, which is the supreme legislative organ of
the federal government [Art 50 (3) of the Constitution] fall under this group of legislation
(primary legislation).

In addition to this, there are certain circumstances in which the primary legislation may
include laws that are issued by the executive (subordinate) authorities. However, in such a
case, for those laws to be categorized under the above group of legislation, the authorities
enacting them should be empowered to do so by the supreme law (constitution). In
connection with this, the FDRE Constitution confers the Council of Ministers the power to
proclaim a decree of emergency [Art. 93 of the Constitution]. Hence, such decrees passed by
this organ may also fall under the said category of laws.

Nevertheless, the fact that both the proclamations and the decrees of emergency belong to
the same group of law does not mean that they have equal authority in the hierarchy of
laws. This is because, as a rule, in order to say that legislation made by different authorities are
on equal footing in hierarchy; their makers should be on the same position in the power
order. However, this is not true in the case under consideration. As said shortly before, the
House of Peoples’ Representatives is the supreme authority of the federal government. As a
result, the federal statutes (proclamations) enacted by it are superior to all other laws made
by the federal authorities. Accordingly, the Council of Ministers, being a federal authority,
is subordinate to the House of Peoples’ Representatives and thus the laws made by it are
inferior to the proclamations.

However, the status of the decrees of emergency proclaimed by the Council of Ministers is
exceptions to what is said above. This is because, the Constitution empowers the Council of
Ministers to suspend even democratic and political right provided there under through the
decrees issued by it in time of emergency. Therefore, for stronger reason, it is possible to say
that the decrees of emergency proclaimed by the Council of Ministers can repeal the
proclamations.

Unlike the decrees, those were issued under the Revised Constitution of 1955 and the
Constitution of the PDRE, the decrees that are proclaimed under the FDRE Constitution
have short span of life. In other words, they are expected to stay as decrees for a maximum
of 15 days as it is indicated in Art 93 (2) of the Constitution.

If the House of Peoples’ Representatives is in session, the decrees of emergency proclaimed

by the Council of Ministers are submitted to it within 48 hours of its adoption. However, if
the House of Peoples’ Representatives is not in session, the decree is submitted to it within
15 days of its adoption. If such decree is approved by a two-thirds majority vote of the
House, then it will be promulgated as a proclamation of emergency [Art. 55(8) of the
Constitution].

However, if the decree does not obtain the required majority vote, it will be annulled. The
practice in the previous two constitutions was different from this, because the decrees in both the
Constitution of 1955 ad 1987 were proclaimed only when the parliaments were not in session
and they were submitted to them at their next session. For this reason, the decrees issued under
the two Constitutions might be in force for a longer period of time. This was especially true
in the case of decrees issued under the PDRE Constitution because the National “Shengo” which
was the supreme legislator under this Constitution was not in session through out the year. It was
only once in a year that it had a regular session [Art 67 of the PDRE Constitution].

The other group of law (derivative legislation) that are issued at the federal level include
regulations and directives. The Council of Minister and each ministry issue these
legislation. In this case, the Council of Ministers derives its power to make the regulations from
the supreme legislator i.e. the House of Peoples’ Representatives through the primary legislation.
Consequently, the position of the regulations and directives on the ladder of hierarchy is
below the proclamations and decrees. However, in so far as the regulations are passed by the
Council of Ministers, they are higher in hierarchy than the directives passed by each
ministry.

Generally, as we have seen above, the legislation that are enacted at the federal level are not as
such of many kinds. Therefore, their hierarchy can be easily identified.

5.2.4) STATE LAWS AND THEIR HIERARCHY

At present, the Federal Democratic Republic of Ethiopia comprises nine states [Art 47(1) of
the Constitution]. They are: Tigray; Afar; Amhara; Oromia; Somali; Benshangul (Gumuz);
Southern Nations, Nationalities and Peoples; Gambella peoples and Harari people. The powers
of the Federal Government and of these states are defined by the Constitution of FDRE [Art
50(8) of the same]. The federal Constitution grants the State councils the power to enact
laws on matters falling under the state [Art 50(5) of the same]. As it is mentioned in Art 52(2)
(b) of the same, the laws that are enacted by the State Councils include the state constitution
and other state laws.

In order to see the hierarchy of those laws in the states mentioned above, the following four state
constitutions are taken as instances. These are: the Constitutions of Tigray Regional State,
Amhara Regional State, Gambella People Regional State and the Southern Nations, Nationalities
and Peoples’ Regional state. All these Constitutions declare in their supremacy clause that
subject to the supremacy of FDRE Constitution, they are the supreme laws of the
respective state. To this effect, the Constitution of Tigray Regional state in its supremacy clause
states that consistent to the FDRE Constitution, it is the supreme law of that regional state.
According to this Constitution, any law, customary practice and an act of agency of
government or official that contravenes it shall have no effect [Art 9(1) of Tigray Regional
State Constitution]. The Constitutions of Amhara Regional State (Art 9(1)) and Gambella
Peoples’ Regional State (Art. 9(1)) have also employed the same wording.

The forms of legislation existing in the states under consideration are similar to that of the
federal legislation. These legislation cover: state statutes, decrees, regulations, and directives. As
provided under Article 49 of the three regional state constitutions (Tigray, Amhara, and Southern
Nations Nationalities and peoples), the state councils of these Regional states are empowered
to enact laws that do not contravene the federal Constitution and other laws. The
Constitution of Gambella people regional state also confers power to the State Council of the
same to make laws that are applicable in that regional state [Art. 50(3)(1) of Gambella regional
State Constitution].
What is more, as per Art 93(1)(b) of the FDRE Constitution, state executives have the power
to make laws in case of emergency. Art 93(1) of the FDRE Constitution reads:

State executives can decree a State wide state of emergency should a national disasters or
an epidemic occur. Particulars shall be determined in State Constitutions to be
promulgated in conformity with this Constitution.

Accordingly, the Constitution of Amhara Regional State empowers the executive committee to
issue a decree of emergency when the state Council of that regional state is not in session (Art.
54(8) of the Amhara Regional State Constitution).

In the regional States under discussion, both decrees and regulations are issued by the same
bodies (the state executives). Moreover, both legislation are non-derivative. However, the
question is which one of the two is higher on the ladder of hierarchy? Decrees are issued in
special circumstance with a view to avoid a series danger that may destruct the whole
society. Thus, though both are issued by the same organ and have the same character (non-
derivativety), Ayele thinks that decree should prevail over regulation. In general, hierarchies
of laws in states (regions) seem to be the same with that of Federal State.

CONCLUSION

We have seen that the concept of hierarchy of laws indicates a chain of subordination
between laws that emanates from the power chain of the lawmakers.

In the federal legal system, it is difficult to determine the hierarchy of laws of the federal and
the states or regions in our case.

We have seen that the Constitution was, under the Revised Constitution of 1955, and the
Derg regime and is now, supreme, i.e. it is at the higher level of the hierarchical order of
laws. The 1955 Revised Constitution also grated supreme power to the emperor. Accordingly,
the emperor had the final say on laws to be enacted. Proclamations, decrees and order were
under the Revised Constitution. In addition to these primary legislation, subsidiary legislation
as orders, regulations, legal notice, general notice and notice of approval come to the next
ladder below to the primary legislation. We observed that orders enacted by the Emperor
have the character of primary legislation since the Emperor was empowered to enact them
by the Constitution.

Coming to the PDRE Constitution of 1987, legislation enacted by the President and the
Council of State stood second in the hierarchy to the Constitution. We have discussed that
laws that were made by the National “Shengo” were superior to decrees and special decrees
passed by the President and by the Council of State. What is more, special decrees made by
the Council of State and approved and upgraded to proclamations have the same hierarchy
with proclamations.

On the other hand, regulations and directives were subsidiary legislation. These came under
the hierarchy of laws enacted by the Council of Ministers. Administrative regions were also
empowered to enact directives, which were lower in hierarchy to regulations and directions,
and directives issued by the Council of Ministers and each Ministry.
Under the 1994 FDRE Constitution, international treaties have been given the place of
proclamation at the federal level. These international treaties and agreements, being part of the
federal laws of Ethiopia, should not be affected by the laws of Regions. However, it is hard to
determine the hierarchy between such treaties and agreements and the law of Regions.

Further, all laws (proclamations) made by the House of Peoples’ Representatives are second
to the Constitution. Other laws enacted by subordinate bodies of the Federal State are
inferior to the proclamations, except decrees enacted by the Council of Ministers in case of
emergency. Such decrees may be promulgated as emergency proclamation where the House of
Peoples’ Representative approves them.

Furthermore, we have seen that the House of Peoples’ Representatives enact regulations and
directives according to the power given under proclamations.

Under Regions, Constitutions are superior in hierarchy. Regions have the power to enact
emergency decrees where the State Council is not in session. The decrees should be submitted
to the Councils and they may prevail over regulations made by the same body. We have
seen that decrees come on the upper ladder compared with regulations in the regions.