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If not to be amended, let the constitution get at least interpreted

By and large, constitutional texts which are clear enough are not amenable for arbitrary interpretation to the level of our individual wishes and whims as they are self-executing ones from the very outset. They should instead be applied for what they say rather than what they mean. That is what we happen to call ‘textualism’ in the strict sense of the term.

To that end, if some of the provisions in a given constitution are, as they stand present, not able to respond to the demanding reality on the ground the more preferred option is perhaps to alter their textual structures rather than to try giving them a new and strange meaning which they are not originally intended for by way of extended mode of unwarranted interpretation.

Now that the House of People’s Representatives of the Federal Democratic Republic of Ethiopia has, however, passed a historic decision on May 5 2020 by majority vote regarding the postponement of the sixth-round general election which is not to be held on the recommendation of the National Electoral Board due to the enforcement of the State of Emergency Decree imposed on March 31 2020 with a view to combating the spread of COVID-19 pandemic, a plausible way-out must be sought on how to insure the lawful continuity of the incumbent government in power along with the legislature before their terms of office expire in early October 2020.

As a matter of experience, jurisprudence provides for an ample and solid foundation on which ‘constitutional Interpretation may be premised. One such principle is ‘effectualism’. The essence of this golden principle is that the constitution needs to be approached in its identity and wholeness although the immediate issue at hand actually refers only to one or more provisions. In such a delicate situation, therefore, those articles or sub-articles submitted for critical examination must be approached and interpreted in such a way as to make the whole constitutional text become effectual and thereby achieve its overarching objectives.

In the Ethiopian case, the fundamental principles governing the 1995 constitution are laid under Arts 8 through 12 which must also be complemented by the National Policy Principles and Objectives added in Chapter 10 of the Supreme Law of the Land.

As we all know, the declaration of the State of Emergency Decree Proclamation No. 3/2020 currently in force for five consecutive months was precipitated by the pandemic. Definitely, any sort of epidemic on the scale of COVID-19 stands out as one of the sufficient causes to so declare a nationwide state of emergency throughout the country as provided for in Art. 93 Sub-Art. (1) a) of the Federal Constitution. Hence, it is submitted that the government must be allowed to remain in power in all its setups beyond the term of office duly prescribed by Arts. 54 Sub-Art. (1) and Art. 58 Sub-Art. (3) of the constitution which are not qualified by exceptional provisions, presumably for lack of proper foresight on the part of the very framers of the constitution itself.

My final remark is on when the fresh and expected election must be held and for how long the incumbent government be allowed to remain in power without popular mandate given the strong likelihood that such a government might usually develop a dangerous appetite for an authoritarian overstay as time progresses.

Without any doubt, unless one is persuaded to appreciate the whole chain of complexities currently engulfing the country and willing to opt for a pragmatic approach, this last issue might look tricky and controversial on immediate glance. Yet, its anticipated disposal has to do with nothing else other than the duration of the pandemic which we don’t exactly know at the moment.

Hence, the proposed interpretation of the relevant provisions sought by the House of People’s Representatives might better take into account the maximum limit of effective period of the State of Emergency which is 6 months’ long subject, of course, to the parliamentary licensing renewal for each and every four months in succession as per Art. 93 Sub-Art. (3) of the constitution. With this defining reference, therefore, this writer humbly suggests a year-long transitional period of extension beginning to count from the date on which COVID-19 will have been officially declared ‘conquered at the national level’ and the state of emergency lifted to that effect.

Ed.’s Note: Merhatsidk Mekonnen Abayneh is a senior expert in law as well as peace and security studies. The views expressed in this article do not necessarily reflect the views of The Reporter. He can be reached at [email protected]

Contributed by Merhatsidk Mekonnen Abayneh