It has been almost a quarter of a century since the Ethiopian Constitution was enacted. For much of these years, the Constitution remained packed remaining a paper value and ignored by the government at times. Most constitutional and political issues used to be solved by informal political negotiations and manipulation instead of the formal institutions and procedures. The past two years have been remarkable for the constitutional development of the country as challenging puzzles began to occur from the avalanche of quests for regional status, assertive regional states challenging constitutionality of a law enacted by the federal parliament, and now postponement of the sixth election. These all could be seen as a good start to the path of constitutional democracy and constitutionalism while at the same time would lead to dysfunctional system if not properly addressed.
The Tigray Regional State has insisted that the sixth national and regional elections should not be canceled and it will hold the election despite the Federal Government’s stance to postpone it. This unease between the two levels of government has created frustration and confusion as to what constitutional and political solutions could it solve it. This piece proffers to throw light by exploring the issue from comparative experiences and principles imbedded in the idea of federalism.
Federalism and democracy
There are varying views explaining the relationship between federalism and democracy even if both concepts are subject to varying interpretations. Some view that both have similar values such as centrality of consent, devolution of power, due representation to work on common objectives, checks and balances, separation of powers, rule of law for the protection of essential liberties, etc. where both are considered as reinforcing rule of the people. Both are considered as ‘constantly seeking to accommodate the varying interests of different collectivities within a viable political framework’.
Others view that there is tense relationship between federalism and democracy by depicting that the over-representation of less populous territories in the upper chamber goes against the democratic principle of equality of votes. They also raise the adjudication disputes between the two levels of the government by an impartial umpiring body, usually supreme courts, erodes democracy as it allows unelected judge to quash laws enacted by a legislature. Despite such tensions, the cardinal values of federalism and democracy illustrated above bind them together.
Either way, election is crucial in federal democracies. Some features of federalism make it stand as inherently democratic whereas for federalism to succeed, democratic values are considered prerequisites. It may be fair to conclude, as one writes rights puts, that ‘the relationship between federalism and democracy is a by-product of the dialectical interchange of operational, structural and conceptual variables, all converging to the same desirable state of affairs: a just and viable polity reconciling authority and legitimacy, efficiency and accountability, autonomy and control.’ In other words, the manner that the two concepts are intertwined conceptually, in the Constitution and practical dynamics shapes the relationship between the two, both having similar ends.
The Current Ethiopian constitutional puzzle
The COVID-19 pandemic has become a global phenomenon compelling government and business to cease or reduce operations. In Ethiopia, the House of People’s Representatives (HPR) declared a state of emergency (SoE) with a view to halt the spread of the pandemic. Accordingly, the National Electoral Board of Ethiopia (NEBE) ceased its preparation activities to the election on the ground that the restrictions imposed by the SoE have made its operations impossible. The NEBE, then submitted a recommendation to the HPR stating that it cannot hold the election scheduled for August 2020. This was followed by the HPR requesting constitutional interpretation from the House of Federation (HoF).
This decision of the federal government faced unbending resistance from the Tigray Regional State which insisted that the election should be held before the expiry of the term limits of the incumbent. It alleges that the federal government has manipulated the pandemic to cancel the election and to stay in power longer than its term limits arguing that it is unconstitutional. Several questions might follow from this. Is it possible for the regional governments to organize election by themselves? How much are the arguments to hold the election constitutionally valid?
Whose Constitutional mandate is it to hold election?
The NEBE is mandated by the Constitution to conduct in an impartial manner free and fair elections in Federal and State constituencies. It is, therefore, up to the NEBE to organize all sorts of election nationwide as it is constitutionally mandated to monopolize the task of organizing elections. This makes for the regions impossible to organize an election by their own. Several premises may justify this argument. Firstly, election should be taken as one of the areas that need uniform standards and hence a matter of common importance. This emanates from the federal idea of dividing power to the two levels of government should be guided by the idea that matters which are considered as common goals should be left for the federal government while regional interests should be left to the states. Secondly, the regional constitutions do not establish such institutions. Neither do they claim it as part of their residual power on the ground that the power to organize election is not in the list of enumerative power of the federal government. The NEBE is the only legitimate body that is constitutionally empowered and obligated to hold an election which meets the aspirations of the Constitution. No other body is entitled to organize an election.
Thirdly, the idea of federal supremacy compels regional states to obey federal laws on matters identified as concurrent. The example of the United States is apparent in this regard where the federal government leaves the area to be regulated by the states and intervenes only in some areas it identified as important. This argument emanates from the fact that electoral issues should be matters of common importance and hence, should be identified as concurrent powers. Even according to this argument, the federal government has pre-emption power making federal laws prevail over states.
All these arguments lead us to the conclusion that the NEBE, as the organ constitutionally mandated to conduct election throughout the country, monopolizes this power and no election could be undertaken without it being involved. An important question that is raised by some scholars is what would happen if the NEBE defied to exercise its power to hold elections on time? This issue will be addressed in the following section.
Validity of alternative arguments
The arguments made by the Tigray Regional State rests on the idea that the federal government has defied the Federal Constitution in failing to hold the election within the time frame. And it stands as the defendant of the Constitution and insists to hold the election amid the pandemic and SoE. The Central Committee of the TPLF, in its latest press release, reflected that the regional autonomy and self-determination rights recognized by the Constitution vests the power to hold the election by itself. They also relate this stand of the regional states to take a more protective measures to human rights recognizing the human rights provisions under the Federal Constitution as minimum standards. Most of all, no assessment that shows the possibility of holding a free, fair and reliable, elections amid the pandemic and the state of emergency is made so far by the regional state.
However, these arguments fail to take in to account several ideas inherent in federalism and the totality of the effect of holding election on human rights. The ultimate goal of federalism is to create or maintain a larger political organization while keeping regional autonomies in a way solving the problems of scale and diversity, and not to create several small independent entities.
Even if arguing in favor of holding election may seem protective of election related rights, it has the tendency to jeopardize other rights such as the right to health, and the right to elect and be elected itself. The Constitution, under article 54 (1) guarantees an election to be of universal suffrage, direct, free, fair, in secret ballot and periodic. One can question whether it is possible to hold an election of such kind in the middle of the exponentially spreading pandemic and state of emergency. This decision, in the opinion of the writer, should be left for the body that is constitutionally mandated to organize an election.
Its implications to the federation
In the preceding paragraphs, attempts have been made to unpack the constitutional questions and implications of the insistence of the Tigray Regional State to hold the election amid the spreading pandemic and state of emergency. While federalism and democracy are not inherently having tense relationship, and rather have common ends with features reinforcing rule by the people, it is crucial to make them work in operational realities. It is especially critical and important to pull these concepts to the ground and attempt to solve the current constitutional puzzle.
The current constitutional puzzle in Ethiopia should be approached from this perspective. It may be said on the one hand that regional states may hold the election with the purpose of giving election-related rights more protection than the federal government and as part of their right to self-determination. On the other hand, it may also be argued that the federal government’s stand not to hold the election amid COVID-19 is in line with its constitutional duty to protect rights of citizens (the right to health, the right to a free, fair, general and direct election). Both arguments may pick selective aspects of federalism and democracy to justify their positions. However, as both ideas of federalism and democracy are embraced in a single Constitution, it is crucial to see the bigger picture that the Constitution aspires to achieve.
Federalism and democracy, as explained above, reinforce rule by the people through their principles and structures. And hence, election should not be seen in isolation from other fundamental rights and freedoms, but rather total effects of it for others. Likewise, regional autonomy should not be assessed separate from powers of the general government. Federal and democratic systems are supposed to embrace the concepts of limited government, balance of power, centrality of consent, etc.
Additionally, there should be a mutual respect among the two levels of governments and principled intergovernmental relations within the constitutional framework. Both levels should bear in mind the bigger aspirations of creating one economic and political community implied in the Constitution. It is believed that such contentions, if solved amicably within the constitutional leeway and by institutions established by the Constitution, would contribute to the strengthening of constitutionalism in Ethiopia. Both the federal government and regional states should be watchful of the volatile constitutional system that created them not to cause further crisis and fragmentation.
Ed.’s Note: Belachew Girma (LL.B, LL.M) is Consultant and Attorney at Law and a Part-Time Lecturer at Addis Ababa University School of Law. The views expressed in this article do not necessarily reflect the views of The Reporter. He can be reached at [email protected]
Contributed by Belachew Girma