Mulugeta Aregawi is a DC-based lawyer who attended school both in Ethiopia and the U.S. He earned his LLB from Addis Ababa University Law School and LLM from Washington College of Law, specializing on International Law. He used to offer different courses, including constitutional law at the Law School. Mulugeta is also known for sharing his views and opinions on current affairs with different media outlets freely and boldly. Solomon Goshu of The Reporter discussed with Mulugeta current issues and the constitutional discourses related to it. Excerpts:
The Reporter: As you know, currently, there is a chain of political unrest and protest going on in the country. Underneath the protest, there are a number of political questions which the government believes it has started responding to them adequately. What is your take on all of that?
Mulugeta Aregawi: Since I am a lawyer, let us start with the facts. The ruling party EPRDF has been in power for the past 25 years; and, in that time, the party has achieved some visible outcomes in the economic aspect. On the other hand, when it comes to the justice system, good governance, corruption and rent-seeking, things have not been that impressive. By the government’s own admission, these problems have now become a threat to the system. Furthermore, the government is saying that its structure is captured by rent-seeking bureaucrats. Now, the party is asking for extra time to renew and cleanse itself. As we all know, the ruling front went through the same self-cleansing process 15 years ago. If you look at the first self-cleansing process and the one the party is doing at this time, there are subtle differences between the two. The first one was initiated by the political rift that happened within the TPLF, the founding member of the ruling coalition EPRDF. Of course, some of the other EPRDF-member parties may have been involved in the process but it was generally an EPRDF process initiated by the needs of the party itself. However, the recent party evaluation and self-renewal process is a forced one. It is a response to the simmering public upheaval towards the ruling party. Now, the main issue is how to alleviate these problems, which by the government’s own admission are threatening the system. So, on one hand the ruling party EPRDF is saying that it is capable of solving these problem; and that all it needs is time. Meanwhile, those in the opposition camp are saying the ruling party had 25 years to deal with its problems if it had the capacity to actually do so. This is where we are at this time.
One of the peculiar issues in the self-evaluation and renewal processes of the one 15 years ago and the one right now is that the two have identified somewhat similar challenges to deal with. Does it make sense to deliberate on similar national challenges for over 15 years?
Unusually, one need not look far to see that the government has failed to deliver on some of its commitments. The prime minister of the country has said it publicly back in November. In fact, such kind of full disclosure regarding one’s failures is highly unusual in most governments across the world. Hence, I would say it is so courageous of the ruling party to do so. According to Prime Minister Hailemariam Dessalegn, the system has failed to deliver all-over. Now, the big question is if you stay in power for 25 years and still failed to deliver on good governance, what have you been doing all these years? If not governing what is the job of a government then. Apart from that, how much time is needed to deliver on good governance? What is the guarantee that it will deliver given the track record thus far? These are some of the issues which I have hard time to understand given the current situation. In a recent interview with the national broadcaster, four seasoned EPRDF officials had argued that when the party went through the renewal process 15 years ago, it did not promise or give a guarantee that it will never start to decay once again. They said it is something that could not be guaranteed by the party. It was striking to me to hear that because it gave me a sense that the party feels that it is excusable to experience decaying while governing the country. But, the FDRE Constitution does not allow the ruling party or the government to decay or degenerate; it will not say that it is excusable. Rather, the electorate public holds the right even to recall its representatives in between election cycles if it feels that the party and hence the government that it leads is decaying. It is also wrong to argue as if decaying or degeneration is a normal cycle in the party that should be tolerated by the public; the mindset is wrong altogether. If we are to talk about the proposed measures such as reshuffling the ranks of the party and government, I also don’t think that it will be a solution to the current problem. How could the government expect to overcome its governance problems by making mere personnel change while it is still working with the old system? As far as I understand it, the problem of good governance is a legal issue, a policy issue, a political issue and a social issue at the same time. So, it is a fundamental problem. You cannot solve this problem by reshuffling officials in the government and the party. It does not matter if you bring world-class minds, if they are subjected to work under the current ideology and policy framework they too will fail. I am talking about the likes of changes that have happened in Oromia’s OPDO recently. I anticipate this will not be a credible reform in the eyes of the public.
Some people argue that the FDRE constitution is a highly liberal document whose full implementation is stifled by the EPRDF historical left leaning political ideology and the recent developmental state direction. What is your take on that?
I want to say this very bluntly, I don’t have any evidence that suggests EPRDF is really committed to the Constitution which the party itself took the lead to daft. I personally believe, freedom of expression is the most fundamental right of all human rights. I argue, there is nothing called life without freedom to think and express oneself. But, I think this fundamental right is ignored in Ethiopia. For this, you can see the state of the media in Ethiopia. You can see authorities attaching the label of a terrorist to journalists. The anti-terrorism proclamation even goes to the extent of criminalizing threat, in addition to action or intention. Political parties do not have an unrestricted right to assembly. Without fulfilling all these conditions how could you check the power of the government? You know, any constitution is devised to check the power of a government. It is the first and most important job of a constitution. So, where is the limit of the power of government in Ethiopia? It was not clear. So my guess is that by the time the Constitution is drafted, the world had experienced a major shift in the political power with the victory of the western liberal ideas. So the framers had no other viable option but introduce such a liberal document. The same is true for the transitional period charter of 1991. However, it is difficult to say that the party has a belief in the ideals of the Constitution from the start. So, to get back to the point, there are a number of other contradictions in what the ruling party is saying at the moment. On the one hand, the party says that the nation’s future will be bleak without EPRDF, while on the other it admits that it was unable to deliver good governance in the past 25 years. Even when you see the so-called democratic developmental state concept, I also observe stark differences between what the government is doing and what the late Prime Minister, Meles Zenawi, had written in his paper: Dead Ends and New Beginnings. For example, Meles says that the private sector is not going to be partner of the development coalition in the developmental state. Meanwhile, you hear the government saying these days that it encourages the private sector to participate in development process. If you take Meles’s argument regarding democracy, he never said straight-forwardly that a developmental state could be a democratic system. And, he admits that until the farming community, a major partner in the democratic coalition, starts to transform there is a need to have a government that would stay in power and keep the development wheels running. This cannot be classified as democratic. To address this concern, they decided to call it a democratic developmental state. This is a bit confusing for me. If you are democratic, you accept diversity in principle. So, you cannot write-off legal and peacefull political decent claiming that you are democratic. Look, there is a provision in Ethiopian Criminal Code which criminalizes incitement to destroy the constitutional order. Honestly speaking, I can tell what exactly it means. But it is absurd to invoke the constitution against an individual. The constitution is invoked almost always against government, not individuals. You invoke the criminal code against individual. You see, there are such salient contradictions between what the Constitution says and what the government does. If you ask me, the Constitution is a very liberal document. Back in the days when we said that the constitutions was a liberal document, opposition parties used to criticize it as pro-EPRDF. Now, the opposite is happening: the opposition is citing the Constitution and the government is on the defensive.
The ruling party officials always state that they sacrificed their life to bring peace, stability and development to the country and claim that they give priority to advance the interest of the people. To the contrary, there is a public perception that largely blames the officials for being incapable and corrupt. According to the reports made by many international organizations, the corruption of the officials is not grand corruption compared to other African countries. However, the perception of the public is that the officials are engaged in grand corruptions. In terms of top EPRDF leadership, how do you evaluate the perception and the reality on the ground?
Those EPRDFites who were fighting to liberate the people from the military regime’s oppression were young. In my view they were acting what they were talking about, they were heading to achieve some goal and ready to die for that. Well, the meaning of liberation is controversial. However, I believe in what they have said back in those days and I don’t want to question that. I really understand the political and ideological situation of that period which was focused on liberating peoples, which was widespread across the globe. However, right after they assumed government power the situation was completely different. When you assume the government position your number one task is governing. In this regard, the record of the government was problematic. We can see corruption as an example. I do not want to compare the corruption level of Ethiopia with Uganda or Nigeria. By the way, it is misleading to compare Ethiopia with other countries not only in corruption but also in another sector. First of all, we have to collect our facts on the ground and judge it, and then maybe consider an experience of other countries as an illustration. Therefore, we have to study the extent of the corruption since this government took power and we need both qualitative and quantitative studies to address the question. Has corruption increased or decreased? Does this government control corruption substantially? Is corruption in the country manageable or is it out of control?
Again, I don’t need to provide you an example from outside the government. The general assembly of EPRDF, which was held in Bahirdar, identified rent-seeking as an existential threat of the system. I really do not understand the difference between rent-seeking and corruption. For me, rent-seeking is corruption. The ruling party officials are allowing corruption to be an existential threat by their own admission. They promised that corruption will not increase and also to control the level of the corruption. However, they failed to deliver on their promise. So I want to measure the level of corruption based on their commitment. In the same way, we are talking about the Constitution because it is their promise. It is written and approved by EPRDF. Therefore I questioned EPRDF on its own promises. So I am not questioning the intent of the party and I am not saying officials of the EPRDF are bad. I don’t know their intention. But I am judging them based on their actions. In this regard, they have told us that they are not on the right truck to rule and administer. Therefore, the question here is what should be done in the future. What they are saying now is that we failed but to do the right thing we will take measures against those who are using government positions for personal gains and holds us back within the party. Let me give you a very simple example. Prime Minister Hailemariam Desalegn recently stated that the responsible individuals for the recent problem in Amhara and Tigray regions related to the issues of Wolkait were the leaders of the two regions. According to my understanding, when we say leaders of the two regions, we are referring to Abay Woldu and Gedu Andargachew. Therefore, these are the two individuals who are responsible for the problem. The Premiere even said that these two individuals had admitted that they committed a mistake and will correct the problem, which is caused by them. Due to the problem in the Amhara region, the lives of many individuals were lost and properties were destroyed. When a mistake claims the lives of individuals and damaged properties, and the responsible individuals are identified how come the responsible ones are entitled to provide a solution for that particular problem? Again the promise and the practice are not serious even now. I don’t think they are governing the issue even after recognizing the crisis. What should be done was punishing the responsible ones. Therefore, in this regard the perception and the reality are different.
The questions behind the current protest in Ethiopia look to be evolving quickly; in fact, these days the general attitude seems to be shifting towards regime-change. On the hand, observers say that a regime-change option could be risky arguing that there is no organized political power at the moment. How can one reconcile the two?
Basically, I don’t understand these issues of strengthening the opposition blocks well. The government is not responsible to strengthen the opposition and the opposition parties have no right to be supported by the government. What I expect from the government is to respect the Constitution and implement it correctly. If the constitution is enforced the opposition parties don’t need the support of the government; what they need is legal support. What is needed the most is the rule of law. If there is the rule of law, the government will behave accordingly and the opposition parties will also get the opportunity to function properly. The problem now is that the government is acting like a father that distributes benefits. The role of the government is to govern; and when it governs it should govern on the basis of the constitution. The conflict between the government and the opposition is not because that government supports them or not; it is rather because the government suppresses them. Honestly speaking, there is also a problem in the opposition blocks. What have I seen in the country is the politics of hatred. The government believes that opposition parties are destructive, and similarly the opposition believes that the government is destructive. Therefore, they work to destroy each other. The ways of both the government and the oppositions is undemocratic. The politics of hatred and destroying each other doesn’t have an element of democratic process. They are blinded by their hate. The oppositions don’t go that far to recognize the constitution and the laws in the country. Since both the opposition and the government have their own narrow interest, they forget the law and argue with each other. What has to be done was that they should recognize each other, stop the politics of hatred and recognize the constitution and their existence. The government should recognize the existence of the opposition because there is no democracy in the absence of opposition. Democracy is surely, all about diversity of ideas and organizations. The opposition also recognizes the existence of the government. If we start from this point, it is possible to find solutions. So, we know where we are heading and the extent of the danger. What should be done to avoid it comes next. So, in this regard, what the government is saying is that it will conduct a reshuffle. In my opinion, there is no way that reshuffling will be the only solution. What I suggest is that there has to be a platform to entertain the questions and concerns of Ethiopians from different walks of life. It should be the starting point; they don’t have to fear ideas. EPRDF repetitively stated that there has to be change of ideas, although it doesn’t apply it. EPRDF, on the one hand, says that there is no problem that it can’t address and on the hand it admits that it has failed to foster good governance. So, what the opposition are proposing is the overthrow of the government. Logically, I agree that the government is not capable of governing. This is one reality. But, it is also saying that it will reform. If the government will conduct a reform first of all, everyone should agree to include the government as a part of the reform. The thinking of the opposition to bring about change without EPRDF has its own risk. The government in the process should also admit that the regime is not eternal. So, it should work on smoothing the transition and to have soft landing. Honestly, in my view, if we try to apply all democratic rights in the country right now, chaotic situations might happen because there are also external issues, the country is not only dealing with internal issues. Therefore, through systematic dialogue among the government, the opposition and the public, there can be manageable reform. It is not impossible; of course, it might be realistic or not. The force that pushes the government to step down might face resistance from the government that will invite a clash that will be very destructive.
The government is following a first-past-the-post electoral system, but there are some who challenged this system and proposed the practice of proportional electoral system. Recently, officials of the ruling party promised that the government is willing to revise its laws governing the election process in the country. If the promise becomes a reality, do you think a proportional electoral system will be a solution to address the problems of the country?
Honestly, this question is a luxury as far as I am concerned. What is presumed here is that we have been conducting fair and free elections in Ethiopia in the past. But, I don’t believe that way. I don’t believe that free and fair elections had taken place in Ethiopia. So, without conducting free elections, talking about what kind of electoral system should be in place should be secondary. How the winners will be identified and how the parliament should be constituted are secondary issues. If there are free and fair elections in Ethiopia the current electoral law in Ethiopia is not bad. The public without questioning the presumption went to the secondary issue. Without having an election talking about the result and the management of the election is difficult. Nevertheless, it is very good that the government is working on that. How are you going to talk about democracy where government and party are the same and a party claims a one hundred percent victory of the parliament seat? There are so many questions that should be addressed that require intellectual integrity and courage.
