Browsing by Author "Fessha, Yonatan Tesfaye"

Now showing 1 - 13 of 13
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    Constitution-making in Zimbabwe : assessing institutions and processes
    (University of the Western Cape, 2016) Marumahoko, Sylvester; Fessha, Yonatan Tesfaye; De Ville, Jacques
    Since its conquest by Britain in 1890, Zimbabwe has witnessed a series of constitution-making projects. Spanning over 100 years, the question of constitutional development has continued to dominate public debate. The end of colonial rule did not see an end to the demand for a constitution that is legitimate and durable. The search for an enduring and good constitution continued into the 21st century. With the unveiling of the 2013 constitution-making project, however, it seemed as if a long lasting solution had been 'delivered' on the question of a legitimate and durable constitution. The thesis assesses the questions of institutions and processes in Zimbabwe’s quest to construct a new constitution. It contends that institutions and processes used to make constitutions are as important as the contents of a final constitution. That is why more time and efforts are often spent negotiating the twin questions of institutions and processes of constitution-making than is spent negotiating the content of a constitution. With this in mind, the thesis develops standards for assessing institutions and processes used in successive constitution-making projects in Zimbabwe. A major finding of the assessment is that the twin questions of institutions and processes were neglected in all constitution-making efforts undertaken in Zimbabwe, including that which culminated in the creation of the Constitution of 2013. The thesis maintains that a lot of significance must be attached to the design of institutions and processes of constitution making if a constitution is to be enduring and widely accepted as legitimate.
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    Controlling public health emergencies in federal systems
    (Routledge, 2021) Ayele, Zemelak Ayitenew; Fessha, Yonatan Tesfaye
    It was merely a day after the World Health Organization (WHO) declared the coronavirus disease (Covid-19) a global pandemic that Ethiopia recorded its first case of infection. On 12 March 2020, a week after entering the country from Burkina Faso, a 48-year-old Japanese national presented himself at a public health centre in the capital city, Addis Ababa, and was diagnosed as having Covid-19. The number of cases in Ethiopia’s estimated population of 110 million climbed steadily in the following months, and by the end of October some 96,000 people were infected in what is one of the most populous countries in Africa.
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    Defining local government powers and functions
    (Sabinet, 2007) Steytler, Nico; Fessha, Yonatan Tesfaye
    The functional areas of provincial and local government competency are listed in Schedules 4 and 5 of the Constitution, with those appearing in part A of each schedule confined to provincial government and those in part B of each schedule to local government.1 The schedules list functional areas without providing any detailed definitions of them. Considerable overlap between the functional areas assigned to these two spheres of government leads, in practice, to an overlap of powers and functions. Overlap is distinct from ‘concurrency’. Within the meaning of the Constitution, concurrency of powers refers to the existence of the same powers over the same functional areas, as is the case for example with national and provincial competencies over Schedule 4 functional areas. Overlap of functions, on the other hand, occurs where more than one level of government has authority (be it legislative, executive, or both) over the same functional area. The constitutional allocation of ‘original powers’ to local government produces at least two areas of overlap.2 The first type of overlap can be referred to as supervisory overlap. A provincial government has regulatory and monitoring powers over Schedules 4B and 5B matters in terms of ss 155(6)(a) and 155(7) of the Constitution. Thus, in respect of every Schedule 4B and 5B functional area, provincial government has power, albeit limited, of supervision. The question then arises as to the extent and ambit of such supervisory powers. The other type of overlap arises from an overlap between matters listed in Schedules 4A and 5A and those in Schedules 4B and 5B. In this case, there is no clear definition of the functional areas belonging to each sphere of government, resulting in a lack of clarity about the cut-off points between functional areas. For example, both provincial and local government have authority over health care services, with the only definitional distinction being made through the use of the qualifying term ‘municipal’. Due to this overlap there is a degree of confusion about who does what. This article is confined to the issues of overlap flowing from the latter type of case. The focus is on the overlap between provincial and local government powers that, unlike the intended concurrent jurisdiction that the national and provincial governments have over Schedule 4 matters, is unintended although not unforeseen. The aim of this contribution is threefold: (a) to determine the nature and extent of overlap between provincial and local government powers and functions as well as problems flowing from such overlap; (b) to examine how the overlap is being dealt with by stakeholders; and (c) to develop a systematic approach to defining provincial and local government powers.
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    Ethnic federalism and internal minorities: the legal protection of internal minorities in Ethiopia
    (Edinburgh University Press, 2013) Fessha, Yonatan Tesfaye; Van der Beken, Christophe
    Not a single federal arrangement has been successful in demarcating the territorial matrix of the federation into separate ethnically defined territorial units. The decade-old federal experiment in Ethiopia is no exception to the impractical reality of creating ethnically pure sub-national units. Although the internal structure of the federation, by and large, follows an ethnic line, ethnic minorities are found in the midst of most, if not all, regionally empowered ethnic groups. This has brought to the fore issues about the majority–minority tension at the level of the sub-national units or, as they are called in Ethiopia, regions. The status and treatment of those who do not belong to the empowered regional majority has emerged as a thorny issue that has bedevilled the federal experiment. The aim of this contribution is to examine whether the federal system adopted in Ethiopia responds adequately to the challenges of internal minorities. It, in particular, examines whether the federal arrangement provides for appropriate institutional solutions to the tensions that exist between regionally empowered groups and their internal minorities. Before discussing the Ethiopian case, however, the article, in the following section, casts the issue in the context of multi-ethnic federations. By doing so, it seeks to show that the problem of internal minorities is not unique to the federal arrangement in Ethiopia.
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    Federalism, territorial autonomy and the management of ethnic diversity in Africa: reading the balance sheet
    (Centre International de Formation Européenne, 2012) Fessha, Yonatan Tesfaye
    The history of federalism in Africa is a history of ambivalence. In the run up to independence, federalism was an idea that galvanized several political movements that, following the retreat of colonial powers, emerged to represent the interest of ethnic groups that were anxious about their political status in post colonial Africa. But it was also an idea that was subsequently rejected by those that wield state power and thrown into historical dustbins. Recent developments indicate that the federal idea that was never given a chance to develop and was being strangled at birth is now re-entering the constitutional scene of several African countries. This short article examines how African federations have responded to the ethnic diversity that characterizes their societies. In particular, it examines how the territorial autonomy solution, implicit in these federations, have helped to deal with the challenges of ethnic diversity.
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    Female genital mutilation as a human rights issue: examining the effectiveness of the law against female genital mutilation in Tanzania
    (Juta Law, 2013) Yusuf, Camilla; Fessha, Yonatan Tesfaye
    In many African states, female genital mutilation (FGM) is a deeply-entrenched cultural practice. Tanzania is no exception. FGM persists despite the fact that the country has ratified a number of international and regional human rights instruments that protect women against the practice of FGM. The mere fact that the practice continues despite Tanzania's obligation under international and regional human rights treaties raises the question whether Tanzania has put in place adequate constitutional and legislative measures to protect women against FGM. It is this question that this article seeks to address. Against the backdrop of the emerging consensus that posits FGM as a human rights violation, the article examines the effectiveness of the constitutional and legal framework of Tanzania in protecting women against FGM.
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    In the name of diversity: The disenfranchisement of citizens in an African Federation
    (Brill, 2021) Fessha, Yonatan Tesfaye
    The empowerment of ethnic communities is the cornerstone of the constitutional arrangement of the Federal Democratic Republic of Ethiopia. The Constitution organises the state along ethnic lines by using ethnicity as the primary basis to demarcate its internal boundaries. Ethnically defined autonomous subnational units are the basis for the organisation of the federation. At the same time, the Constitution, like many other contemporary Constitutions, provides for a vast array of individual rights. It declares equal commitment to both individual rights and the right of ethnic communities to autonomy. Despite the constitutional commitment to equally uphold the autonomy of ethnic communities and individual rights, the constitutional practice, this chapter argues, seems to give more weight to autonomy rights and frustrates claims based on the right of an individual to equal treatment.
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    Institutional recognition and accommodation of ethnic diversity: federalism in South Africa and Ethiopia
    (University of the Western Cape, 2008) Fessha, Yonatan Tesfaye; Steyler, Nico
    This thesis focuses on federalism and ethnic diversity. Using two case studies.
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    Public participation in constitution-making: A critical assessment of the Kenyan experience
    (University of the Western Cape, 2009) Tom, Mulis; Fessha, Yonatan Tesfaye
    Kenya has embarked on a constitutional making process that is hoped to ensure a transition to democracy. The current constitution making process is not the first of its kind in post independence Kenya.1 Since the Lancaster House Conference2 that gave Kenya its very first constitution after independence, constitution making processes have been fraught with controversies.3 The periods after independence saw the Kenyans glamour for constitutional change and reforms.4 A number of amendments have been effected to the Kenyan, constitution since independence. The clamor for constitutional review gradually grew leading to the repeal of section 2A of the Constitution in 1991 which restored multi-parties.s The pressure from civil society organizations in 1997 led to the enactment of the Constitution of Kenya Review Commission Act6 and this was considered as the formal beginning of the Constitutional Review Process in Kenya.7 The next major constitutional review process came in after the end of the term of President Daniel Arap Moi in 2002. A review process, commonly known as the
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    Representation of ethnic groups in subnational political institutions: The case of the Democratic Republic of Congo
    (University of the Western Cape, 2017) Samuel, Matemane Iraguha; Fessha, Yonatan Tesfaye
    With approximately 450 tribes and 250 ethnic groups in a territory of 2 345 095 km2,1the Democratic Republic of Congo (DRC) is one of the world's largest, populous, and multiethnolinguistic countries. Since the departure of the Belgian coloniser in 1960, this Member State of the Southern Africa Development Community (SADC) is facing a myriad of institutional crises, bloody conflicts and wars, mainly caused by the design of political institutions and the side-lining of some ethnic groups from political institutions. For many decades, Congolese provinces have seen numerous violent ethnic-driven conflicts, which led to institutional instability, political crisis, secessions, massacres and wars. The bloodiest of them all were the first and second Congolese wars. From 1996 to 2002, these so-called "African first world war" cost the DRC the lives of millions of people, divided it into many small "republics" and destroyed the few political and economic infrastructures that survived four decades of institutional instability and dictatorship.
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    A tale of two federations: Comparing language rights in South Africa and Ethiopia
    (Pretoria University Law Press (PULP), 2009) Fessha, Yonatan Tesfaye
    The success of a federal arrangement in accommodating ethnic diversity cannot be measured solely on the basis of its language rights regime. However, it is generally agreed that a well-designed language rights regime goes a long way in contributing either to the effective reconciliation, unity and diversity or to the eventual polarisation of cultural communities. This article focuses on the challenges of adopting an inclusive language policy in multi-lingual states. Using two case studies, South Africa and Ethiopia, it examines the different policy alternatives for accommodating linguistic communities.