Can the Ethiopian Constitution be a savior?

The exercise in interpreting the Ethiopian Constitution has got unexpected reception although some politicians tend to see it as one that shun opposing voices

Meaza Ashenafi, Chair of the Constitutional Inquiry Commission. Photo file/ credit EBC

borkena
Editorial
May 27, 2020

It was unimaginable for many Ethiopians, especially those who are (and who were) in the opposition quarter, to consider the current Ethiopian constitution as a savior in times of danger.

After Ethiopia’s electoral board cancel a scheduled election due to the Coronavirus situation in the country, which the Ethiopian parliament approved in a majority vote, the search for a legal means to extend the national election led the parliament to conveniently opt for constitutional interpretation as a tool to resolve the crisis the implications of which would have caused a political turmoil.

The decision has got its own detractors. For some politicians (like Lidetu Ayalew), and political organizations (like Tigray People’s Liberation Front (TPLF), the constitution is “explicit” about that election and power of the executive. There is no room in it to make a case for an extended election after the end of the term of an elected government.

From the first two Constitutional Inquiry Committee hearings, however, it became apparent that there is ample room to make a case for the extension of the election in the context of Coronavirus related state of an emergency declared in the country which will remain in place at least for three more months.

The Commission is yet to make the ruling, and it would constitute unethical to discuss the outcome of the process before it is announced.

What is relevant for now is that the process itself, with all its shortcomings, was one that kindled hope that Ethiopia has the potential for transitioning to a constitutional system in spite of all political challenges that seem to be irreconcilable at times. Putting the problematic (even dangerous) provisions aside, it is a fresh memory for many of us that the constitution is not everything for a country. Egregious human rights violations have been committed against Ethiopians by those who claim that they are the champions of the constitution and with the use of state power actually. We have seen horrifying mob-killings that had been orchestrated by non-state political actors. It is the ability of state actors to effectively implement the constitution (of course while strictly observing it and not manipulating it in favor of maintaining a hold on power – among other things) that matters most.

The understanding of many Ethiopians was that the constitution is essentially a threat to the existence of Ethiopia. Notwithstanding much-needed amendments, the process from the Inquiry Commission revealed that the document is still usable and capable of being used to rescue the country.

Let us revisit the process briefly. Three hearings have been completed so far. During the first hearing, legal experts offered their opinion about the possibility of extending the election. In the process, they revealed possible legal means at the disposal of the Federal government to act decisively if the existence of the country is threatened in any way. In the past few years, the Federal government acted submissively, with exceptions in the Somali region of Ethiopia, and it appeared, on the surface, that regional governments are more powerful than the Federal governments. Ironically, it appeared to look that way after Tigray People’s Liberation Front (TPLF) lost power from the Federal government.  Once it lost its Federal power, it started to act like a de facto state-based in Northern Ethiopia – at times it appeared more powerful than the Federal government if judged based on numerous statements that the organization issued. There was even a time when Tigray regional leaders arrested Federal law enforcement units sent to Mekelle to execute a court order. 

On the second day the inquiry commission hearing, academics, and individuals who were part of the Constitutional Drafting Commission gave testimonials and remarks in connection with the “constitutional crisis” that Ethiopia is facing. People like Tesfaye Habiso, Andreas Eshete, and Taye Aske Selassie, among others, shared their memories from the drafting process from nearly three decades ago. Andreas offered analysis regarding the philosophical basis of the constitution – which he highlighted from the point of view of democratic autonomy and checking government power, the sovereignty of the people, group and individual rights, and delegation of power to diffuse concentration of powers – among other issues.  Taye Aske Selassie, in his own right, sharply retrieved the discussion during the drafting process. He made it clear that the strength of the constitution is in bringing about stability in times of danger. All the reflections, with the exception of Andreas Eshete, implied that there is room for making necessary changes in times of national emergency (like the coronavirus crisis). Andreas argued there is a stronger need to hold an election in troubling times but he later made what he called “correction” saying that he did not mean that the election has to take place in this time of Coronavirus crisis.

Day three of the hearing involved professionals in the health sector. Apparently, this was rather a formality in the sense that the World Health Organization has already declared the disease a pandemic. However, they offered their opinion in the context of the Ethiopian situation, and without a doubt, the opinion is relevant for the inquiry commission to make its decision.

As stated above, the point is not about the extension of the election. Whether it is extended or not, it is not a guarantee that Ethiopia’s political, rule of law and security challenges would vanish.

The most relevant point is the exercise into constitutionalism which is the ultimate guarantee for the rule of law. The legal experts did an excellent job, albeit they made repeated references to the US constitution as an example the merit of which is debatable to say the least, in that they showed there is a viable possibility for it. Arguments from the point of view rights of citizens, continuity of the state, human rights, and the importance of seeing the constitution as a single document, rather than singling out particular provisions, were all useful lenses through which many Ethiopians saw the importance of reconsidering the view that the constitution is useless.  And when there are essence and merit in the process of interpreting the constitution, chances are the outcome could have the potential to be useful too. 

The ruling on the subject, which is an election, could not be a precedent, as one of the legal experts argued during the first day of the hearing, but the process is an excellent precedent. Through a process like that, the  Ethiopian constitution could become more useful. With the needed changes, it has the potential to be a savior. Aluta Continua!



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