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QUEST FOR CLARITY

Quest for clarity

Exactly 25 years after its inception, the Ethiopian Constitution is having the ride of its lifetime. To be honest, nothing has ever shaken the tittering constitutional democracy of Ethiopia since it came into effect, a quarter of a century ago. And get this, not only during the most deadly pandemic the world has ever seen – COVID-19 – but because of it.  As bizarre as it might be, this too is a story about the Coronavirus pandemic. While a number of countries around the world are reporting the multifaceted impact this virus is having on their social, economic and political lives, few nations, perhaps none, are facing the difficulties Ethiopia is facing right now. If you are wondering how big of a problem, it is big enough to invoke the first ever public hearing to be held on one of the most profound constitutional disputes the country has ever seen.

Exactly 25 years after its inception, the Ethiopian Constitution is having the ride of its lifetime. To be honest, nothing has ever shaken the tittering constitutional democracy of Ethiopia since it came into effect, a quarter of a century ago. And get this, not only during the most deadly pandemic the world has ever seen – COVID-19 – but because of it.  As bizarre as it might be, this too is a story about the Coronavirus pandemic.

QUEST FOR CLARITY

 

While a number of countries around the world are reporting the multifaceted impact this virus is having on their social, economic and political lives, few nations, perhaps none, are facing the difficulties Ethiopia is facing right now. If you are wondering how big of a problem, it is big enough to invoke the first ever public hearing to be held on one of the most profound constitutional disputes the country has ever seen.

The way events and occurrences came together to push the nation to the brink are really unique. The random set of events that unfolded in the past few months appear almost as if they happened by design, by some supernatural force, nonetheless.

Slowly evolving over the past two years, since the coming to power of Prime Minister Abiy Ahmed (PhD), the political environment in Ethiopia in the pre-COVID-19 period was quite ripe for a major milestone; a decisive election or an all-out conflict.

The majority of the political forces in the country, largely in disagreement with the administration regarding the way the reform/transition process is progressing, were on the side of caution when it comes to holding the most anticipated general election in Ethiopia.

The Federal election administrator, the National Electoral Board of Ethiopia (NEBE), has seen its support base eroded due to its decision to push the traditionally May elections to August, at the height of Ethiopia’s rainy season. The Board, citing a scheduling mix-up because of the extraordinary situation created by the Sidama Referendum held in an election year, somehow justified the alternative election program. It has accordingly obtained the budget appropriation it needs to execute the election based on the revised schedule.

Nevertheless, while the Broad was in the middle of straightening out political party’s registration issues and writing the necessary election governing directives, the unexpected happened. The World Health Organization (WHO) after much deliberation, declared the novel coronavirus infection that originated in Wuhan, China, a global pandemic. Not only that, in mid-March, Ethiopia announced its first COVID-19 case, shifting attention to the pandemic, which has already started to bring most advanced nations in Europe and North America to their knees.

Just like any poor nation, Ethiopia reacted by tightening its belt; which meant diverting resources and partially shutting down economic activities, in the midst of a mini macroeconomic crisis that kicked off at the beginning of the reform process.

This was not enough; as the number of COVID-19 cases started to increase, anxious nerves in the government pushed for the hardest decision to pass in an election year, a five month long State of Emergency (SoE), approved by none other than the outgoing 5th Ethiopian Parliament.

The seemingly less consequential and justifiable decision to fight this global pandemic, eventually, gave way to a predicament of a larger magnitude. While the five month SoE could not be questioned given the life-cycle of the pandemic across the world, it also happened to fall on the already pushed national election schedule.

Now, the FDRE Constitution, which if anything is said to be unusually detailed, has no stipulation to govern an overlap between an SoE and a national election, and the fate of the legislative and the executive, whose tenure will elapse in this condition. The highest law of the land, while stating that a SoE could take precedence over some basic democratic rights it also maintains that election is the only instrument that can decide the tenure of a sitting government and that it has to be held every five years if there is to be a legitimate mandate.

Meanwhile, the framers of Constitution were conspicuously silent on the nexus between these two provisions, which has the potential to be read as contradictory.          

Realizing by now that it might have stumbled into a political minefield, the administration of Prime Minister Abiy Ahmed (PhD) called on a dialogue among political parties active in the country. To make things a bit easier, the administration presented four different alternatives to opposition parties and the public, as part of the solution to the historical political challenges of the nation.

This is where the fundamental crack starts to appear. First, all four alternatives presented by the government; a Constitutional amendment, interpretation, dissolution of Parliament and ordering a state of emergency, were all solutions to be sought within the framework of the FDRE Constitution.

According to strong voices in the opposition camp, all of the proposed solutions, which they criticized as a desperate ploy by the administration to find a legal way out of the problem it finds itself in, were attacked on the grounds of leaving no room for a political and negotiated resolution. These opposing groups go even further to suggest that the government should be open to any solution including a transitional government, outside of the constitutional envelope.

The opposition dialogue forum having rejected all three, settled for a constitutional interpretation option. Soon, the Ethiopian parliament, also endorsed the Constitutional interpretation option, leading to one of the most momentous Constitutional impasse to ever face the country.

The Ethiopian constitutional interpretation process in itself is a complicated endeavor. Legally, it is the upper house, the House of Federations (HoF) that has the power to interpret the Constitution. The HoF has a body under it –the Council of Constitutional Inquiry– tasked with investigating Constitutional disputes and presenting pertinent recommendations to the HoF for votes.

While technically with the power to investigate, deliberate and hold hearings on constitutional matters, the Council, nevertheless, has a non-binding advisory role to the HoF, while the latter makes the actual constitutional interpretation.

The eleven-member Council, chaired by the nation’s Supreme Court President Meaza Ashenafi and Deputy President Solomon Areda, also includes six independent legal professionals on top of the three designated HoF representatives.                     

To this end, the Council of Constitutional Inquiry held its first hearing session in which several legal experts have forwarded a brief on the process of constitutional interpretation related to the postponement of the national election.

Members of the commission posed a total of ten questions on the first day of the hearing, which were held last week. Constitutional legal experts were informed to “harmonize the constitution,” as they put it, in a way to find a legal ground.

Article 54 of the constitution boldly stipulates that the general election must take place every five years before the end of the terms of the incumbent. This article is the one that has instigated the process of seeking a constitutional interpretation, since the term of both the existing parliament and the executive branch of the government, is about to expire. 

On the opening session of the hearing, held at Sheraton Hotel, a brief prepared by four legal experts namely Solomon Ayele (PhD) human rights expert, Yontan Tesfaye Fiseha (PhD) a Constitutional expert from South Africa, Adem Kassie (PhD) Constitutional expert from the Netherlands, Zemelak Aytenew (PhD) Law lecturer at AAU, Getachew Assefa (PhD) Law lecturer at AAU and Tadesse Lencho presented views regarding the interpretation and how the constitution should be understood.

On the first day of the hearing, heavy weight constitutional scholars and lawyers presented their possible solution to address the current political and constitutional deadlock in-line with the constitution. Litigants, who appeared before the CCI to point out their views on the first day, were overwhelmingly in favor of a constitutional interpretation. However, all of them suggested that the interpretation should be very narrow and focused.

Interestingly, Tadesse Lencho (PhD) argued that conducting an election is more about the content, than the timing. “The election must be credible, fair, and acceptable,” he said. He also argued that Ethiopia does not have the technological infrastructure to conduct the election in a time of a pandemic and a credible election cannot take place, “under the duress of COVID 19,” as he put it.

He also noted that the interpretation needs to be narrow enough to address the existing issue, and that it should not set a precedent. Another interesting argument he put forward relates to Article 93 of the constitution, which grants the government the power to declare a state of emergency under circumstances like the Coronavirus pandemic. He described that part of the article as the “Intensive Care Unit of the Constitution,” Which will decide the fate of the constitution itself.

Getachew Assefa, on the other hand, noted that comments which have been raised against the need for a constitutional interpretation, do not consider the current situation that has occurred in the country. Considering the situation, the state of emergency is acceptable, and the postponement of the election is legal since the country has not made enough preparations for voting, due to COVID 19, Getachew argued.

To the contrary, the International Oromo Lawyers Association (IOLA) is of the view that the right approach is both political and constitutional solutions. IOLA also stands against the whole process of interpretation and argued that, it should not be a unilateral decision and should also incorporate the dissenting views of all stakeholders and that the political cost that occurred due to the unilateral decision might also be highly consequential.

The rationale behind such caution emanates from the argument that there is no constitutional dispute; hence, there is no necessity for interpretation. “Necessity is defined or finds expression in the context of whether or not constitutional dispute exists. Therefore, the House of Peoples’ Representative’s current request for constitutional guidance on the postponement of the national election and subsequent matters is not supported by the constitution or any relevant proclamations,” the association argued.

Apart from this, the association further argued that there is no justifiable ground that merits a constitutional interpretation in this matter. “Even if we assume there could be one, the CCI or the HoF cannot confer a unilateral political power upon an un-elected government to unilaterally rule the country beyond the constitutionally sanctioned election deadline.”

Furthermore, the association said the outcome of the interpretation effectively culminates into a constitutional amendment and defeats the national ethos and CCI’s mandate to interpret the federal constitution, and certainly violate regional constitutions.

The second secession of the hearing, held on Monday, also attracted seasoned politicians and scholars to present their ideas. What made the second secession special was that it involved individuals who were engaged in the making of the Ethiopian constitution, nearly three decades ago.

On this secession, high caliber personalities such as Endrias Eshete (Prof), Taye Astkeselasie, Tesfaye Habisso and other high profile individuals, lined up and presented their respective views regarding the interpretation of the constitution to the CCI. On this session, experts recalled the process of drafting the constitution by those who had witnessed the process.

The third and final session of the hearing was held to listen from the Ministry of Health (MoH) and NEBE whereby Liya Tadesse (MD) of MoH and Birtukan Mideksa of NEBE presented their views regarding whether there is a favorable condition to conduct elections or not.

In this regard, the MoH suggested that it was difficult to project when the pandemic would end. However, the minister expressed her concern given the fact that the virus is spreading in Ethiopia and community transmissions is taking root, that it is not advisable to conduct an election since it exposes many to physical contact.

Similarly, the NEBE also stated that despite its preparations prior to COVID- 19 pandemic, the current situation is not favorable to conduct an election. Therefore, the Board has come up with the possible scenarios regarding future election prospects. It suggested that the elections might take place in the coming 10 months, in the first scenario and 13 months in the second scenario. If the second scenario is to be applied and the election could take place in 13 months, the Board needs 8 billion birr to conduct the election.

What is left now is for the CCI to report back its recommendations to the HoF, which in turn will decide the timeframe for the upcoming general election and the conditions on how the incumbent would undertake its activities until the next election takes place and a new government is established.