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Concerns surrounding federal intervention

Thorough investigation on the contents and scope of the 2003 federal intervention law reveals that there are several departure points from the wordings and intents of the Federal Constitution, writes Endalkachew Geremew.

The arrest of Abdi Mohamoud Omar a.k.a. Abdi Illey, the former president of the Ethiopian Somali Region State, was trending on social and mainstream media as soon as it was made public. The arrest came after a prolonged social media push by Ethiopians who posted and commented in regards to the terrifying acts of violence, killings, vandalism and looting which targeted non-Somali speaking peoples in the capital city of the regional state, Jigjiga. Constitutionality of the deployment of federal forces in the Ethio-Somali Regional State sparked debates and brought the federal government intervention proclamation, which was enacted in 2003, to the fore. So ho relevant is the proclamation and what is the fate of Ethiopian regional states’ going to be when it comes to volatile security issues?

Federalism and mechanisms of handling internal security threats

Conflicts or security threats in plural societies are hardily avoidable. It is this fundamental reason that the state law enforcement agencies are authorized to use force legitimately in order to control and solve security problems. However, well-designed and operational legal and institutional frameworks are expected to serve as primary conflict management and controlling mechanisms. They need to be complimented with the use of force or threats of state coercion for the sole objective of safeguarding the constitutional order. Be that as it may, it can be said that the recourse to use of force to this end is a last resort.

Studies in comparative federalism and scholarly works reveal that federations elsewhere provide in their respective constitutions that there ought to be a strong federal government that should promptly respond to any form of internal threats that might disrupt the constitutional order. In fact, it is underscored that the government of member states, regardless of their autonomy, within the respective territories, hold the primary obligation to ensure the peaceful implementation of the ‘maintenance of order, stability and security’. However, in exceptional circumstances when the member states of the federation become unable to enforce their obligations, the federal government is exclusively mandated to exercise its emergency power. The power ranges from the use of force to various other recourses that necessitate the federal government to take action in order to control the extraordinary circumstances.

Coming to the Ethiopian constitutional and federal system, it can be said that the fulfillment of the objectives of the constitution and particularly “building one political community”, basically requires at least two major elements. Both the federal and regional states are bound to work for the enforcement of the constitutional order. Hence, any threats endangering constitutional order would not be tolerated. In that regard, it is fair to say that the federal government is the ultimate duty-bearer to protect and defend the constitution. To put it differently, the federal government is bound to interfere through different mechanisms whenever there is an imminent, clear, and serious threat which adversely affects the politico-legal order in the polity.

Constitutional rationales behind federal government intervention

The following three points can be taken as constitutional justifications which necessitate the federal government’s intervention hen there are alleged internal security threats, either in the form of widespread human rights violations or other types of conflicts which undermines the public order, which endangers the constitutional order and disturbs the peaceful co-existence of the federal arrangement. These are: Duty to Ensure the Constitutional Supremacy Principle, Duty to Ensure the Enforcements of Fundamental Human and Democratic Rights of Citizens, and Duty to Ensure the Observance of Public Law and Order.

Grounds, modes and effects of federal intervention in Ethiopia

According to the proclamation, the federal government can intervene, ‘whenever there are acts in one of the units which deteriorate security circumstances’, ‘violation of human rights’ or/and ‘endangering the constitutional order’.

The legislation on intervention serves as a tool to understand and interpret what types of situations qualifies the federal government to intervene.

Firstly, it states that ‘it [federal government] shall deploy at the request of a state adminis­tration, federal police or national defence forces or both forces to arrest a deteriorating security situation within the requesting state when its authorities are unable to control it.’ However, here, the constitution is silent on two vital issues. On the one hand, the constitution only mentions about national defense forces during the request of the Regional State whereby deploying of federal police forces is additionally inserted by the legislature. On the other hand, it is not clear whether the ‘federal government’ stands to or refers to the House of People’s Representatives, the House of Federation or the Council of Ministers. I raise this point because all three organs of government have certain powers to exercise federal action. However, the proclamation makes it clear that it is the Prime Minister who has the authority to order the deployment of federal forces. Perhaps one might claim that the inclusion of such power to the Prime Minister may sound unconstitutional since it is not penned in the constitution. However, such sorts of legal arguments can easily be dismissed since the PM is the commander in-chief of the army per Art 74(1) of the constitution, henceforth, ultimately the matter pertains to his/her constitutional ambit of power. Nonetheless, the forces to be deployed should only be owing to the gravity of the situation. Accordingly, the regional state administration at all levels are duty bound to collaborate. The intervention law puts a legal duty where the PM is under obligation to present periodic reports about the measures taken and the general situation to the HPR though it does not the frequency and duration of such reports.

Secondly, both the constitution and the federal intervention proclamation states that the HPR shall on its own initiative request a joint session of the HoF and of the HPR to take appropriate measures when state authorities are unable to arrest violations of human rights within their jurisdiction. In this respect, albeit the lack of clarity in the constitution regarding the effects, contents and modes of the broadly stated appropriate measures mean in terms of scope, the legislation had made it plain that during the existence of human rights violation in the region on the basis of the joint decision of the Houses give “directives to the concerned state authorities. The law provides certain procedural mechanism that requires compliance before all the actions. This will be undertaken up on the receipt of information by either Human Rights Commission, representative of the region or any person (which possibly includes media reports, associations or NGOs reports working on the area) about the violations. It should also be observed that the HPR shall establish an investigating team who shall determine whether the human right violation alleged to be committed would lead to issue directive to the respective state or not. However, it is not clear why a directive should be given had the very ground itself has indicated the inability or failure of the state to deal with the situation. This form of intervention is distinct from the former in the sense that the HPR may take this initiative even when there is no state request. Various commentators maintained that both the constitution and the legislation had the impression that the state administration itself could be a suspect, among other things, to engage itself to the violation or simply complicit to the alleged atrocities with the perpetrators. However, it has to be noted that except the reference made in regards to the inability to arrest the human rights violation by the state organs, it does not define or illustrate what acts amount to human rights violations and what makes intervention inevitable.

Thirdly, the HoF shall order federal intervention if any state is in violation of the Federal Constitution and endangers the constitutional order. It broadly defines the phrase ‘endangering the constitutional order’ as an activity or act carried out by the participation or consent of a regional government in violation of the constitution or the constitutional order. It also enumerates particular instances like: a) armed uprising; b) resolving conflicts by resorting to non-peaceful means either between regions or ethnic groups; c) disturbing the peace and security of the federal government; and d) failure to implement the directive issued by the HPR on the ground of human rights violation. Certainly, this seems to have some overlap with the declaration of the state of emergency.

Briefly, the consequences of intervention are severe in the event when the HoF orders the deployment of federal forces into the regional state allegedly found to be endangering the constitutional order. The federal government is not only limited to legitimately use force but also three other federal actions in accordance with the law. These are: 1) dissolving the State Council; 2) suspending the highest executive organ of the region; and 3) replace it by establishing a Provisional Administration accountable to the federal government. Besides, the Provisional Administration stays in the region for a period not exceeding two years; however, the House of the Federation may, where necessary, extend the period for not more than six months.

Nevertheless, the HOF requires from the PM a report to be submitted quarterly or whenever it summons the PM to follow up on the measures taken thereof as per Art 16 of the proclamation. This includes devising mechanism to conduct study and evaluation by sending its team. If things are not going well, like if there is still violation of rights or actions taken by the security forces is not appropriate, the HoF will give directive for matters that require corrective measures. It is equally important to note that, all the facts of the situation and the measures shall be notified to the general public through the forms of ‘issuing statement’. Moreover, Art 17 of the proclamation stipulates that a public forum shall be held periodically to enable the public to have access to information and to give opinion about the present circumstances.

In conclusion, thorough investigation on the contents and scope of the 2003 federal intervention law reveals that there are several departure points from the wordings and intents of the Federal Constitution. We can find these concerns on the Minutes of Legal and Administrative Affairs Standing Committee of the HPR, Open Public Deliberation held in June 18/1995 EC and also Art 2(1) of the law which defines the term ‘intervention’ covering all the three situations.

It stressed that “all actions that requires measures to be taken in the event of violations of human rights necessarily involve interventions by federal government…so too for situations that deteriorate security within the regions…thus it is appropriate to use the word intervention in both cases”. It further argued on the object of the constitution to create one political community and the principle of supremacy as authorizing the federal government to act in such events. This was evidently reflected during the deliberation of the law as found in the official document titled “The Brief Elaboration on the Draft Law of Systems of Federal Intervention into Regions”, prepared by Legal and Administrative Affairs Standing Committee of the HPR.

During the Open Public Deliberation, the then minister of the Ministry of Federal Affairs, Abay Tsehaye, said: “it is possible to apply Art 93 of the constitution and declare region wide state of emergency...however, the constitution in such cases does not provide mechanism to oust regional governments…’

The effect on the autonomy of the regions turns the federal arrangement upside down as some the experts argued in regards to this particular point. The elected representatives of the states should not be ousted by a simple federal order or through the use of force. It might be argued that HPR broadens the scope of the federal government’s authority to interfere in the regions.

However, unlike cases of emergency, the proclamation is silent about the possible effect that might result while undertaking actions of intervention. In other words, it is questionable whether rights in such situation can be limited, suspended or derogated as the circumstances rightly look like emergency. We can infer the possibility of limitation on rights from the different provision of the proclamation, though it does not clearly say such and such unlike the constitution; it recognizes the principle of necessity and proportionality for all the actions taken by the deployed federal force.

Ed.’s Note: Endalkachew Geremew is an attorney and legal consultant. The views expressed in this article do not necessarily reflect the views of The Reporter. He can be reached at [email protected]

 

Contributed by Endalkachew Geremew
Contributed by Endalkachew Geremew