Sunday, May 26, 2024
InterviewA Constitution Divided

A Constitution Divided

Yonas Tesfa (PhD) is a legal scholar with extensive knowledge and experience in the field of law. Having obtained his master’s degree in International Human Rights Law from Sweden and his PhD in Development and Human Rights from Warwick University, Yonas is a renowned legal expert and scholar on constitutional law and human rights issues in Ethiopia.

In his view, Ethiopia’s political landscape has been dominated by a single vanguard party that exercises complete control over all aspects of governance. As a consequence, the Ethiopian Constitution has become the root cause of the country’s current political instability, lacking the necessary mechanisms to bring about peace.

In an exclusive interview with Abraham Tekle of The Reporter, Yonas delved into a variety of constitutional issues, including the ongoing debates surrounding constitutional amendment, the recent PSI constitutional amendment survey, and the disputed articles of the Constitution. He also shared his insights on the federal system, highlighting the need for regional governments to receive the necessary resources and support to effectively carry out their obligations.

Excerpts:

The Reporter: How has the Constitution’s structure contributed to the political instability that Ethiopia has experienced in the last five years following a change in government?

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Yonas Tesefa (PhD): One fundamental cause of instability is the general framework of the Constitution. Other factors, though, could contribute to Ethiopia’s ongoing insecurity. Various political elites in Ethiopia have multiple perspectives on the country’s state formations. There are numerous misunderstandings surrounding this issue. The narrative originates from the country’s historical storytelling, as well as our perceptions of our identity and historical heritage.

Any constitution is intended to constructively control such disputes and resolve them within the framework of the basic structure. From that perspective, everything that has occurred in the country over the last five years in terms of political developments is a reflection of the constitutional structure.

Ethiopia’s constitutional structure has been in place for some time. The country has had three constitutions since the feudal period, followed by the Derg regime. The constitution of the Ethiopian People’s Revolutionary Democratic Front (EPRDF) is the fourth constitutional framework; nonetheless, both the Derg and the EPRDF frameworks aspired to construct a republic nation.

The FDRE constitution’s structure aims to provide Ethiopia with sovereignty, rule of law, democracy, peace and growth. However, it fails to fully deliver on these promises.

The Constitution has thus become the main source of the political instability we currently face, lacking the will and power to bring peace. This has continued for nearly three decades with little progress.

Ethiopia’s state creation is similar to other countries. No nation is founded based on shared understanding or agreed terms. With Ethiopia’s diverse ethnic groups, political elites from different tribes pursue their own agendas. Ethiopia’s formation comes from many contributions over time, for these and other reasons.

Despite these differences, the EPRDF’s constitutional system has significantly fueled Ethiopia’s unrest and instability. This is because its overall framework is based on the primary premise of ethnic-based politics or state structure.

Many arguments have been made in favor of amending the Constitution. Do you think that amending the Constitution alone would effectively address Ethiopia’s overall challenges? Why or why not?

It is difficult to claim that a constitutional revision could fully resolve all of Ethiopia’s challenges. Creating a constitution and implementing constitutionalism are two distinct principles with distinct approaches. For both to work optimally in Ethiopia, an additional governmental structure is required.

The fundamental question is whether we have the will and capacity to enact a constitutional amendment. A constitutional amendment is just one component, not a panacea to solve all issues. In this way, the amendment could set us on the path toward solutions.

However, for the constitutional amendment to be effective, a functioning framework of constitutionalism must be implemented. A constitutional revision alone would not satisfy and meet all citizen interests and inquiries.

During an interview, you expressed your criticism of the way the Constitution was originally drafted, describing it as structurally deficient. What led you to this conclusion?

I can state two key points. There are two camps with opposing views: those who want to abolish the Constitution completely and those who see themselves as its sole defenders. The distinction between political elites lies here.

Building trust between these extreme positions is essential to close the gap. The missing piece between the two views is how the Constitution’s basic foundation is fundamentally flawed. It was drafted and structured incorrectly, violating the basic rules for crafting a modern constitution.

When the constitution was written, the purpose was to protect the interests of one dominant group, the EPRDF. To be precise, following the fall of the Derg regime, the Tigray People’s Liberation Front (TPLF)-dominated party gained authority. Those attending the conference were its democratic supporters who had participated in the armed struggle.

I mentioned the conference to illustrate that it was the chance to lay the foundations for the Constitution. The conference was not participatory. It is impossible to deny this fact. There are various reports and documents stating the conference was not inclusive. It was based entirely on ethnic alliances and military cooperation. Simply put, the charter came into effect after signing by the TPLF, OLF and Eritrea’s EPLF.

The constitution emerged from that alliance-based meeting. Consequently, the conference gave birth to the FDRE Constitution. No one meaningfully participated in drafting the 1995 FDRE Constitution. This is not to say the constitution’s provisions are wholly useless, but we must remember it did not incorporate the views of all Ethiopian people.

What we see today is similar to the past. The current government, like the previous one, rules the country using the same framework embodying undivided control. It is the same as before. The country continues to be governed by a single vanguard party with total power.

What factors have prevented constitutional reform for the past three decades?

Several factors have prevented constitutional reform over the past three decades.

The EPRDF government viewed the constitution as sacrosanct and used it as a tool to maintain power. The idea of amending the constitution seemed out of the question.

Officials believed that constitutional revision could destabilize the country. Further, in substance, the FDRE Constitution is subpar compared to other African constitutions. For example, the section on Freedom of Human Rights merely declares rights without provisions for enforcement. This has created confusion for lawmakers whenever rights are violated. This falls far short of modern constitutional arrangements.

What likely fueled debates over the Policy Studies Institute (PSI) survey results?

Several factors likely spurred the debate over the survey.

One reason is the EPRDF government’s adherence to the constitution. The EPRDF benefits from the status quo and lacks incentive to amend the constitution.

Second, some political groups are satisfied with how the constitution was drafted. Those content with the current system are unlikely to complain, though this may impact national unity.

Others see the constitution as the source of Ethiopia’s problems. It’s not surprising that polarized perspectives have sparked debate and reactions to the survey’s findings.

Those who criticize the constitution tend to fall into the camp that views the constitutional structure as fundamentally flawed. In contrast, individuals satisfied with the constitutional framework are located in the group that supports maintaining the status quo.

However, what if the constitution were amended properly? What would happen then?

Many organizations, including PSI, have conducted similar studies on constitutional amendment. Afro-barometer also did a survey titled “Federalism and the Constitution in Ethiopia.”

Whenever constitutional revision is discussed, it should be part of the national dialogue agenda. The next dialogue should incorporate views from both proponents and opponents of amendment.

It’s difficult to build a united country and promote progress while half the population is unhappy and suffering. For long-term peace, constitutional revision and institutional changes must be applied.

In this regard, we can achieve amendment based on the will of the people through an inclusive, participatory process that represents all equally. This would amend the constitution in the interests of the Ethiopian public.

Some argue the survey did not include more than half of Ethiopia’s ethnicities and does not represent the country’s 120 million people. How would you assess these criticisms?

The key question is whether we should expect surveys to be definitive. This type of research always faces ambiguity and criticism. The focus should not be sample methodology or who was included, but what we can learn: that a sizable portion of Ethiopians want constitutional reform. This cannot be denied, despite limitations.

It would be wrong to ignore such interests or turn a blind eye to others’ happiness. Whenever there is public interest in constitutional amendment, it is unethical to dismiss it.

As I said, not all constitutional provisions require change, but some reform may be necessary in society’s interests.

“We the Nations, Nationalities, and People of Ethiopia” has been contentious. What are your thoughts?

The constitution’s preamble states that the “Nations, Nationalities, and People of Ethiopia” are its authors. But “People” or individuals are unknown or forgotten.

This is a serious, ambiguous issue requiring extensive debate and evaluation. Switzerland has a similar clause applying to all citizens. However, in Ethiopia, “people” seem overlooked. So whose constitution is this? Who are the rightful owners?

To be Ethiopian requires belonging to an ethnic group; otherwise, you are not. This is because ethnic groups are the constitution’s authors and owners.

The terminology “Nations, Nationalities, and People” itself is problematic. Who are the “Nation,” “Nationalities” and “People”? The constitution does not specify, allowing diverse interpretations.

Including this clause, most preamble statements are dangerous and need reevaluation. Constitutional amendment could solve some problems.

What causes the controversy surrounding Article 39 of the FDRE constitution?

Article 39 of the FDRE constitution granting self-determination, including secession, has been controversial since ratification.

Some argue the provision is too radical and could divide Ethiopia into ethnically based republics. However, while vital for protecting ethnic group rights and self-governance, Article 39’s structure could impact Ethiopia and could destabilize it.

There are several reasons for the dispute over Article 39. First, it lacks conditions for secession, meaning any group could separate anytime claiming self-governance. Ethiopia’s federalism links ethnicity to territory, enabling secession.

Second, groups interpret Article 39 differently. Some see it as granting them the right to secede if unhappy with government treatment, while others view it as providing greater autonomy within Ethiopia but not the freedom to secede.

The most pressing issue related to Article 39 of Ethiopia’s constitution concerns the right to secede. The provision does not establish any conditions for secession, which means that any ethnic group could theoretically separate from Ethiopia at any time.

This lack of clarity has led to different interpretations among various groups, resulting in conflict and mistrust. So, it has become a highly controversial provision that could potentially destabilize Ethiopia.

To avoid further complications, it is crucial for the Ethiopian government to take action.

If Ethiopia chooses to maintain its federal system, what changes or improvements could be made to ensure that it benefits the country?

To be honest, it is difficult to categorize the issue solely based on the current state of affairs. Many people may resort to adopting the FDRE’s constitution due to a lack of other options. However, in my opinion, a comprehensive investigation is required to determine the most effective federal system for Ethiopia.

In order for the federal system to function effectively, regional governments must be provided with the necessary resources and support to carry out their responsibilities. While the federal system acknowledges Ethiopia’s diversity, the development of a shared national identity is equally crucial to foster a sense of unity and belonging among Ethiopians.

Ethiopia can construct a more effective and sustainable federal system by reforming the electoral system to ensure better representation of the various ethnic groups in Ethiopia.

Strengthening the rule of law and the judiciary is essential to ensure that all Ethiopians are treated equally under the law. Such measures can promote peace, prosperity, and development for all Ethiopians, and help build a federal system that works for the benefit of the entire country.

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