Why We Must Reform the Constitution Before Elections? (Tadesse Melaku)

By Tadesse Melaku
(Assistant Prof of Law at Hawassa University)
August 17, 2018

1. Background

Constitutions are instruments of limiting governmental power and guaranteeing freedom of citizens in in rule of law-based societies. The Ethiopian constitution which has some good things on face value (e.g. a generous list of human rights and a federal form of government) suffers from fundamental legitimacy issues and institutional defects. A constitution, as a compact, is supposed to be based on consensus, not imposition. The current constitution is an imposition without genuine popular consent and participation. In practice, it has also miserably failed to safeguard human rights and regional autonomy, the raison d’être for adopting the federal project, thanks to an authoritarian socialist ‘democratic centralism’ system. Furthermore, the document contains divisive provisions, i.e. those on the ethnic-based internal boundaries, collective rights (esp. the right of secession) and state ownership of land, just to mention a few. Such issues must be settled through consensus and the electoral process. As Prof Mesfin aptly put it in a 2005 election debate, ‘The constitution is not worth the paper on which it is written’.

The biggest institutional defect of the constitution is that it entrusts adjudication of constitutional conflicts to a political body which is a relic of authoritarian socialist tradition. The review of constitutionality through a legislative institution was the rule in the former communist states but long abandoned once those states embraced multipartism and constitutionalism. Ethiopia is the only country which ostensibly subscribes to multiparty system but maintains such institutional anomaly.

Some people might think the Council of Constitutional Inquiry, which assists the House of Federation in interpreting the constitution, is a professional and neutral organ with more lawyers and less politicians. Those ‘lawyers’ are handpicked by party insiders making the seemingly neutrality a myth. Add to this the fact that some Council members are state presidents who are themselves implicated in repression and human rights violations. Like its predecessors, the current constitution was not meant to secure freedom but ‘to consolidate the power of those who already held it’. The EPRDF’s (one observer called it the TPLF’s1)constitution is a socialist political manifesto rather than a power limiting instrument. Thus, it is not fit to a society which aspires to make transition to political pluralism and democratic order — the vision of the Ethiopian people and their new prime minister, Abiy Ahmed.

Therefore, the federal constitution must be revised if it is to serve the functions of limiting power and safeguarding rights of citizens and communities. In addition, only a consensus-based constitution will command legitimacy and be durable. And the revision must be made before elections. Why before elections? This is the central question this piece will address later. But first the basics.

2. Modes of Constitution Making

Now, I will briefly describe the three models of constitution making — convention, constituent assembly and roundtable — and propose which model to follow in carrying out constitutional changes in Ethiopia.

2.1 Convention

The Americans introduced and used the convention approach2to ratify the federal constitution in 1789. Initially, the federation was formed by thirteen states out of which twelve states sent representatives, which became the convention, to revise the Articles of Association of the then American confederation (1776-1786). Then, the draft was submitted to the founding states for approval. This model was used in the context of a priori distinct and independent states contemplating to form a stronger union, later turned out to be a federation. This model does not appear relevant in the context of Ethiopia on the ground that the participants to constitutional reform are not independent states planning to form a new union. The power contenders are mainly party elites. For this reason, this approach does not seem an option.

2.2 Constituent Assembly

In countries that have experienced a revolution, a fundamental break from the tradition, often establish an elected constituent assembly to revise and adopt a new constitution. The constituent assembly model was invented and applied by the French in 1789 and 1791. It works best where there is a total collapse of an old regime and victory by revolutionaries.3 It provides platform for a democratic representation of the will of the electorate. Since it is an elected body, presumably its legitimacy is well-founded and it avoids the conflicts of interest and credibility issues facing legislative revision.4Constituent assemblies are perceived as more broadly representative of a wide range of interests in society. But, an open membership may frustrate the process of reaching agreement and risk a deadlock and uncertainty. Again, this model does not appear appropriate to Ethiopia at this moment since we are not having a revolutionary change of government. Rather we are anticipating the participation of the incumbent and the opposition joining hands to charter the transition to democratic governance.

2.3 Roundtable Discussions

Michael Laitman claims that RT is not just for politics.5 It works from the individual level to the global level. With respect to constitutional reform, Andrew Arato contends that the roundtable model is “superior to the alternatives”6, as we shall see below. The approach involves two major stages. First, the party in government and the opposition agree to hold all-inclusive roundtable discussions; they agree on basic principles that will be embodied in an interim constitution or charter; this will be followed a democratic election to elect a constitutional assembly that will revise and adopt a permanent constitution. There is also an independent constitutional court that oversees the implementation of the interim constitution and the transition process. The roundtable discussion was successfully applied in Spain in the 1970s and in central and eastern Europe in 1989 and 1990 during the twilight of communism. But it was the South Africans who took it even to a higher level.

What these countries had in the past and Ethiopia has at present is a period of transition from authoritarianism to a democratic order. Ethiopia is going through a ‘post-sovereign’ situation — the absence of a single person or group having monopoly over political power in the country and the RT model is particularly appealing to such situation. First, an understanding of Ethiopia’s present is in order to appreciate my proposed constitution reform model, the RT, and the timing thereof.

3. Ethiopia’s Situation Today

The Ethiopian masses are calling for political reforms, unity and democracy and a wind of hope and change is blowing over the Ethiopian sky. TPLF which has been the dominant force in the ruling coalition, EPRDF, is no longer in charge. Looking at its recent press releases, we cannot categorically tell whether this party has accepted the ongoing reform. For now, it has retreated to its ethnic-base in Tigray. However, sympathizers of the status quo are very much present in the military, security and the bureaucracy. There are setbacks here and there. Security is still the main challenge facing the Ethiopian state. The assassination of the Grand Renaissance Dam engineer at Meskel Square in broad daylight and the attempted assassination on the life of the prime minister at a public rally in support of his leadership at the same place are vivid reminders of the challenge. There is a full-blown humanitarian and political crisis in the Somali Region. So, it is not clear if the reformists are capable of carrying out the necessary changes without sidelining the old guards. It is also unclear if the cadres within the broader EPRDF have wholeheartedly embraced the reform agenda because a potential defeat in the next elections will cost them the economic benefits of official position.

The masses are expressing their support to the new prime minister, at the same time, they are expressing their displeasure with the party he chairs. The ruling coalition has never been weaker. ANDM (Amhara National Democratic Movement) and OPDO (Oromo People’s Democratic Organization) are no longer intimidated by the TPLF. And with the opening of the political space and the advent of foreign-based political parties, even if EPRDF were to maintain a united front, it would not be able to reassert its hegemony. Ethiopia has now entered into a post-sovereign situation. No group can govern the country alone. In the words of Arato, this indicates “the impossibility for old regime actors to save their system through mere reform, and the inability of oppositional, even revolutionary movements to carry out a revolution”.

4. Why Constitutional Reform Before Elections

Commenting on the controversy surrounding the displaying of different flags in recent public rallies in support of Prime Minister Abiy, Jawar Mohammed, an influential activist, incidentally touched upon the constitutional reform issue when he wrote, “… changing the flag requires constitutional amendment. Touching the constitution at this moment would be opening a pandora box that could blow up on our face and bringing down the already fragile state. Enjoy your chosen flag and focus on speeding up towards full-fledged democracy through election” (emphasis added).7 The writer is suggesting to postpone the amendment until after the next election.

In fact, elections can have the opposite of what he tries to avoid, political instability. The upcoming election is likely to be divisive and bitterly fought and ethnic politics is likely to become the main campaign strategy. Most political parties are ethnic-based and, in view of this, divisive messages about past grievances, real or perceived, are hard to avoid. The election may harm the state building effort and the realization of lasting peace and democracy. The divisive nature of elections is a well-documented fact.

I quote the following:

    “In Iraq, for example, elections polarized the people and the Sunnis boycotted them, thus upsetting the communal balance and greatly complicating the task of constitution-making. In East Timor the elections to the constituent assembly provided one party with a clear majority so that it had no incentive to compromise on its own proposals and others had no power to negotiate. Constitution-making became a majoritarian exercise, whereas it should be based as much as possible on a consensus or a large majority.”8 Therefore, the constitutional reform must be done before the elections by using roundtable discussions.

5. Roundtable: Foreign Experiences

In South Africa, following Mandela’ release from prison in 1990, white minority-led National Party government, ANC and several small parties held negotiations- ‘talks about talks’. Arato noted, “Parties with minority constituencies feared that an elected assembly would negate the purpose of negotiations and result in majority rule without constitutional safeguards to minority interests”9 Finally, an agreement was reached whereby all parties, regardless of size of popular support, could participate as equals to decide on core constitutional principles and structure of transitional government. In the end, they agreed on thirty-four basic principles that would govern the transition process and the content of final constitution and the election of a constituent assembly. The drafters of the constitution came from members of political parties.

One of the advantages of RT is that it provides an inclusive platform to engage all political forces. Exclusion of groups (esp. in the age of social media) can derail the transition to democracy. Elite involvement in and support for the transition is crucial for constitutional legitimacy and stability as experiences from South Africa, Eastern Europe and Japan reveal.10

6. What Makes RT Strategically Superior?

The roundtable approach is based on the principles of “inclusion, consensus, publicity, legality and veil of ignorance”11 It is credited for offering a workable strategy (1) in times of transition from a dictatorship and (2) if new forces have no power to accomplish revolutionary change. “The model is difficult to apply to the complete paradigm where forces of an old order have the legitimacy to carry out constitutional reform themselves or where forces of the new can succeed in carrying out a revolutionary rupture themselves”, says Arato. The process involves a democratic election to be held in the middle of the transition, not at the beginning, of the transition period.

Since the parties do not know how much support they have among voters before elections, the theory is that, negotiations under the veil of ignorance will help to reach compromised solutions. But once the outcome of the elections is determined, the parties, particularly those with majority support, have little incentive to enter into roundtable discussions.

Under the prevailing circumstances in Ethiopia, the RT approach offers a viable strategy to bring together both the incumbent and opposition parties to the negotiating table prior to elections. Besides, this approach balances the interests of reformists and revolutionaries and it also accommodates the legitimacy problems of reform and revolution.

Conclusion

All past and present constitutions of Ethiopia (albeit with some progress over time) are characterized by exclusionary policy and top-down approach. The imperial constitutions of 1931 and 1955 were royal grants to a subject people. The Dergue constitution was proclaimed in the name of “We, the working people…”; the transition charter allowed multiparty system but participation in government was confined to “the peace loving and democratic forces present in the Ethiopian society”. Those who did not dance to the tune of the TPLF/EPRDF were not “peace loving and democratic forces”. The incumbent party orchestrated participation, the transition and the making of the federal constitution. The time for zero-sum game is now over. In the new Ethiopia, all citizens and groups must have a voice in chartering the transition to democratic and just society. In view of this, roundtable discussions must be held among all stakeholders to carry out constitutional reforms and the time for this milestone on the road towards justice and democracy should be prior to the coming elections.

The writer is an assistant professor of law at Hawassa University. He specializes in constitutional and federal studies and could be reached at Email: tadessehello@gmail.com

Notes:
1Adem K. Abebe, From the ‘TPLF Constitution’ to the ‘Constitution of the People of Ethiopia’: Constitutionalism and Proposals for Constitutional Reform https://www.academia.edu/4208704/From_the_TPLF_Constitution_to_the_Constitution_of
_the_people_of_Ethiopia_Constitutionalism_and_proposals_for_constitutional_reform
2 Andrew Arato, Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution-Making (Global Constitutionalism, Cambridge University Press, 2012)
3Ibid.
4Ibid.
5Michael Laitman, Why Something Called A “Round Table” Can Make the Lives of You, Your Family, and the Entire World Better: Introducing the Greatest Tool for Decision Making :
www.michaellaitman.com/articles/something-called-round-table-can-make-lives
-family-entire-world-better
6Arato, Conventions, Constituent Assemblies, and Round Tables, note 2.
7Jawar Mohammed, On Flag Issue https://www.facebook.com/search/top/?q=on%20flag%20issue%20
8Yash Ghai and Guido Galli, Constitution Building Processes and Democratization

9Arato, Conventions, Constituent Assemblies, and Round Tables, note 2.
10Ibid.
11Ibid.

References

1. Adem K. Abebe, From the ‘TPLF Constitution’ to the ‘Constitution of the People of Ethiopia’: Constitutionalism and Proposals for Constitutional Reform
2. Andrew Arato, Conventions, Constituent Assemblies, and Round Tables: Models, Principles and Elements of Democratic Constitution-Making (Global Constitutionalism, Cambridge University Press, 2012)

3. Michael Laitman, Why Something Called A “Round Table” Can Make the Lives of You, Your Family, and the Entire World Better: Introducing the Greatest Tool for Decision Making :
www.michaellaitman.com/articles/something-called-round-table-can-make-lives-family-entire-world-better
4. Jawar Mohammed, On Flag Issue

5. Yash Ghai and Guido Galli, Constitution Building Processes and Democratization




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