A/HRC/23/53
33.
Recommendations by the United Nations and African Union human rights
mechanisms were taken into account in the preparation of the present report.
D.
Brief comments on the rule of law
34.
The all-encompassing definition of the rule of law given in the report of the
Secretary-General on the rule of law and transitional justice in conflict and post-conflict
societies was taken as a basis to enquire about the rule of law in Eritrea. 2
35.
The basic tenets of the rule of law are not respected in Eritrea owing to a centralized
system of Government where decision-making powers are concentrated in the hands of the
President and his close collaborators. The separation of powers among the various arms of
the State is inexistent. The failure to implement the Constitution adopted in 1997 is another
reason for the breakdown of the rule of law, although there are other contributory factors,
such as arbitrariness, lack of transparency and accountability, all of which have a negative
impact on the enjoyment of human rights and fundamental freedoms.
36.
A constitutional commission was established by proclamation 55/1994 in March
1994. Following broad consultations, public debate and drafting, the National Assembly
ratified the Constitution in 1997. A brief document apparently destined to evolve with time,
it provides for the separation of powers, with checks and balances, the independence of
institutions, including of the judiciary, and human rights guarantees. As the fundamental
law, the Constitution is based on democratic principles and has the authority to declare
invalid any law or proclamation inconsistent with it.
37.
The Constitution was meant to come into effect following the National Assembly
elections, scheduled for 1997. The elections were, however, postponed indefinitely; Eritrea
therefore continues to operate on pre-constitutional transitional powers. In the addendum to
the report of the Working Group on the Universal Periodic Review, the State under review
remarked that the Constitution was “the supreme law of the land”, and that the Government
was implementing it, “including the holding of democratic elections at the local,
subregional and regional levels”. Some of the institutions provided for in the Constitution
had “yet to be constituted”. The representative added that national elections would be held
“once the threat to national security and the country’s sovereignty is irrevocably removed”.3
38.
Even though the Constitution includes a Bill of Rights (chap. three), the Government
of Eritrea continues to systematically violate these very fundamental rights. Systematic
human rights violations stem from the absence of due process and a lack of credible
institutions through which affected individuals can take their complaints to be examined
and have their rights upheld. Attempts have also been made to silence dissent over the
failure to -implement the Constitution.
39.
Legislative functions accorded to the National Assembly by the unimplemented
Constitution have been assumed entirely by the Government. The Ministry of Justice drafts
and publishes laws in collaboration with other relevant ministries and the Office of the
President; Eritrea is thus a country ruled by decree. The National Assembly has not
convened since 2002.
40.
Despite the guarantee regarding the independence of the judiciary stipulated in
article 7 of proclamation 37/1993, which provides for the structure, powers and
responsibilities of the Government of Eritrea, the court system is weak and prone to
2
3
8
S/2004/616, para. 6.
A/HRC/13/2/Add.1, para. 11.
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