Constitutional Inquiry Commission hearing,salient arguments

Ethiopian legal experts sees solution in the same Constitutional provision that is considered to be a problem

Tadesse Lencho (Phd) giving legal opinion to the Constitutional Inquiry Commission

borkena
May 17, 2020

Ethiopia is living what experts in the field say is “constitutional moments.”   A Constitutional Inquiry Commission hearing was held on Saturday, May 16, 2020, for the first time in the history of the country.

The three hours long, may be longer, hearing was televised live by the state-owned media, Ethiopian Broadcasting Corporation (EBC).

The Ethiopian election coincided with a five months old state of emergency that the government of Ethiopia declared in April of this year in response to the Coronavirus pandemic.

The National Electoral Board of Ethiopia (NEBE) reported to the House of People’s Representative in early May saying that it can not carry out the sixth general election as planned as many of the activities leading to the election could not happen due to the Coronavirus prevention measures including social distancing.

The parliament was convinced that the election could not happen in August of this year as scheduled. The next step was to extend the election which came into a collision course with the constitution of the Federal Democratic Republic of Ethiopia. It did so because the constitution did not foresee a possible circumstance under which the election could not be held before the end of the five years term of the parliament.

For the reason described above, the parliament sought a legal means to postpone the election until after the Coronavirus situation was controlled (health professional – or the Ministry of Health would determine that). Four possible legal options were debated in the House of People’s Representatives: declaring a state of emergency, dissolving the parliament, Constitutional interpretation, and amending the Constitution.

On May 6, 2020, the parliament voted in favor of seeking a constitutional interpretation. It was in that context that the parliament referred the matter to the Constitutional Inquiry Commission. The commission has organized two sessions. The first one was on Saturday this week.

Opinion of legal experts, lawyers, and legal scholars in the first day of the hearing 

Members of the commission posed a total of ten questions in the first day of the hearing.

Opinions of the Constitutional legal experts were informed by the task to “harmonize the constitution,” as they put it, in a way to find a legal ground.

There is a constitutional provision that strictly stipulates general election must take place every five years before the end of the terms of the incumbent government (Article 54).

Interestingly, one of the possible interpretations was found in the same article, as Dr. Tadesse Lencho who indicated from the outset that he does not qualify as a constitutional expert for his specialization is commercial law. He argued that conducting an election is about the “content,” not just the timing of it. The election must be credible, fair, and acceptable. He argued that Ethiopia does not have the technological infrastructure to conduct the election in the time of Coronavirus pandemic and credible election can not take place “under the duress of COVID 19,” as he put it.

He also noted that the constitutional interpretation needs to be narrow enough to address the existing issue and so that it can not set a precedent (he is optimistic that in the future a phenomenon like Coronavirus could not be an obstacle for an election).

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 situation.  He described that part of the article as the “Intensive Care Unit of the Constitution.”

Understanding the constitution as a single document and Principles of the continuity of government are also among legal opinions expressed in favor of the case for extending the election.

Semaw Negatu offered interesting and compelling arguments regarding state of emergency situation. He elaborated on continuity of government.

The views expressed above are only some parts of it. You may watch the whole hearing from the videos:



Video: embedded from Ethiopian Broadcasting Corporation YouTube channel
Cover photo: screenshot from the video



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