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Could Force Majeure justify the continuation of PM Abiy’s Government?

Prime Minister Abiy Ahmed. Photo: PM Abiy FB fan page

Mekuria Gize
May 19, 2020 

Various actors – politicians and lawyers alike – have written and talked about the “four constitutional scenarios” under which the incumbent government can and cannot continue to govern Ethiopia: 1) Constitutional interpretation by House of Federation, 2) Dissolving parliament and establishing a caretaker government led by the PM, 3) Governing by emergency decree, and 4) Amending the constitution particularly altering the terms of the service of the government.  I will not go into elaborating or critiquing these four scenarios because it has been in the public domain and extensively discussed by various experts. In my view, none of these four scenarios is reason to extend the power of the incumbent beyond the 5-year term. There is no legal reasoning buried in the constitution to stretch and interpret for the sake of extending the life of a government that should come to power through an election because extending the power of the incumbent through crunching of articles in the constitution is not in the spirit of the framers of the constitution. The other three scenarios have no adequate explanation to extend the mandate of the current government that is at the very end of its term. In the USA, for instance, the Senate hardly approves assignment of a judge to the Supreme Court at a time when a new president is to be elected, or the introduction of a fundamental new law is not supported. 

The strongest argument for the absence of constitutional reasoning to extend the terms of the incumbent government is found inherently embedded in Article 93. In this article, the framers of the constitution clearly recommended emergency decree in time of the natural disaster, war, public unrest and pandemic diseases. While recognizing the circumstances under which a state of Emergency can be called, they never recommended the postponing of an election during these events because they found them no good reasons to do so.  Above all the framers of the constitution clearly read the experience of other countries’ election dates and circumstances under which elections are held. In this regard, it is also very likely that they read the Ethiopian People’s Democratic Republic of Ethiopia (PDRE) constitution formulated by the workers’ party of Ethiopia (Derg) in 1987. That constitution clearly gives power to the parliament the right to extend its own terms in times of problems.  Having gone through such experiences, the framers of the constitution deliberately opted not to postpone elections under any scenario. So there is no constitutional basis to extend the power of the incumbent government even by one day.

The answer to extend the mandate of the government to govern the country until the next election is found in our reasoning and everyday life. I see two scenarios: the incumbent government can extend its power grip. 1) Force majeure or Act of God 2) Anticipation of Possible Emergence of Security Failure. Under the first scenario, we can bring a case where a contractor fails to deliver promised agreements to its clients on time due to unforeseen situations; it can invoke Force Majeure or Act of God for its inability to fulfil agreed terms. Similarly, we can see the presence of an agreement between the people and the government – a five-year contractual agreement to administer, govern the nation and then undertake/facilitate an election one month before the end of its terms.  The government could not deliver the said promises due to COVID-19 which can be taken as an Act of God or Force Measure. The framers of the constitution had no idea about pandemic diseases because they never lived in times of such diseases and perhaps had not come across literature explaining such diseases or have no vivid memories of such literature. This virus in all situations is in direct conflict with the spirit of democratic elections. No party can call its supporters and explain what it can do if elected. The Election Board cannot do its tasks without risking their life due to COVID-19. It will be in an absolute mess to run the country under such conditions.  Moreover, there is a national consensus to move the election date. The second reason for the need of extending the power of the incumbent, perhaps with some degree of involvement of technocrats and representatives of political parties registered under the Election Board, is the state of the country. Ethiopia has been under misrule for over 50 years and under the worst form of governance that divided its citizens for 27 years.  Because of this, there have been divided views on governance and the fate of the country. Public disturbances are very likely to occur in the country if there is a power vacuum or untested new government. The best approach that grantees peace and stability until the next election is the continuation of the current government, perhaps with the participation of new faces in order to monitor its sometimes autocratic approach toward opposition parties. Censoring the actions of Prime Minister Abiy’s undisciplined police force and militia is a necessary evil.   I think these are the two scenarios the House of Federation (HoF) or any other organ of the Federal government should seriously consider extending the incumbent’s role in governing Ethiopia until the next election.

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