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By Samuel Wolde-Yohannes PhD
I am not of the opinion that the current Ethiopian constitution adopted in 1994 be completely overhauled and a new constitution written in its stead. However, there is no question that some of its articles need thorough review, or be amended altogether. In this piece, I would like to suggest ways in which the articles in question can be reviewed, or even amended.
Article 1, regarding the nomenclature of the state, it “establishes a Federal and Democratic State structure” that will be “known as The Federal Democratic Republic of Ethiopia”. This nomenclature for the Ethiopian State sounds neutral enough to be left to continue to be used now and in the future to designate the Ethiopian state. However, it is a designation that is more aspirational than reflective of what Ethiopia is and has always been, i.e. an amalgamation, a coming together of various peoples having their own territories and their own customary laws alongside national ones. Thus, the term that befits this de facto political arrangement is the word confederation. It is therefore apt and reflective of our reality to call Ethiopia “the Ethiopian Confederation” from here onwards. I am aware that this term has been thrown around recently and been favored by the TPLF and its political associates for no other objective than to muddy the issues. However, it should not be rejected for this reason alone!
Moreover, the terms ‘nation’, ‘country’ and ‘state’ should be reserved only to this Ethiopian Confederation as a whole, and the words ‘nationality’ and ‘citizenship’ to any member of any ethnicity belonging to the Ethiopian Confederation.
Dividing Ethiopia into “Nations, Nationalities, and Peoples” as does Article 39, apart from being quite confusing and unjustified, it does not reflect the Ethiopian reality. If indeed we are to define Ethiopia by her core essence, she is a nation, country or state made up of the peoples that can be listed in the Constitution in the order of their current population size, e.g. Oromo, Amhara, Somali, Tigrean, etc… down to the smallest ethnic group. Nowhere does the constitution define what constitutes a ‘nation’ as opposed to ‘nationality’, or this latter in contrast with ‘people’. These arbitrary references without actual referents can therefore be replaced without jeopardizing the spirit of the letter. From here on, we can agree that each ethnic group in Ethiopia be referred to as people regardless of its population or territory size. Thus, we may speak of the Kwama people in the same way as we would of the Oromo people, without in anyway jeopardizing the intention of the Constitution.
The term confederation is also more appropriate because it strongly acknowledges the legal, cultural, religious peculiarities and histories of each people in Ethiopia without forcing it to conform in every particular with State or National statutes, unless to prevent it from engaging in human and civil rights violation, or contradicting confederal laws. In a confederal arrangement, all peoples will enjoy the same rights and obligation in their respective enclaves, and a more flexible and adaptive enforcement of the law is made possible.
Article 5 deals with the status of Ethiopian languages. What is most striking there is the vagueness of all the three sub-articles. N˚1 states “All Ethiopian languages shall enjoy equal state recognition”. What precisely does it mean to “enjoy equal state recognition”? Does it mean that every Ethiopian language will be inscribed in the list of languages spoken in Ethiopia? Where would that be exactly? Is the word state understood as a federal state or the Ethiopian State? Does it mean that each language will enjoy the same status as the “working language of the federal government”? Would it not be simple and expedient to say that all Ethiopians will have full freedom to speak, write, develop and divulge their respective native languages without any restrictions and impositions?
The second sub-article “Amharic shall be the working language of the Federal Government” clearly implies that Amharic may not be used nor spoken outside the federal jurisdiction. The implication of this formulation is clear: it appears intended to induce each people of Ethiopia to use its own language in all its dealings, excepted of course in its transactions with the federal government. Since Amharic is adopted as a federal language, it should follow without controversy that it be taught in all the schools of the country, used in all communication of the State, as well as being a language of culture and business, which in effect it already is largely. If more than one language is recognized, as it appears to be the general intention lately, then a similar consideration is in order. Supposing in this case that Oromiffa becomes a second federal language, it would be a sensible expectation that all Ethiopians learn it or Amharic as to help the country coalesce further. It should then be understood that native speakers of one federal language be expected to learn the other federal language.
The third sub-article “Members of the Federation may by law determine their respective working languages” is in effect obviated by the previous two sub-articles if it is reformulated as above.
Article 6 N˚2 states that “Foreign nationals may acquire Ethiopian Nationality”. This formulation fails to specify under what conditions a foreigner can acquire Ethiopian citizenship. Can a foreign criminal fugitive acquire Ethiopian nationality? How long must one reside in the country before one can apply for citizenship? How may descendants of Ethiopians, but citizens of other nations – which is increasingly our current reality – reclaim or acquire Ethiopian citizenship? Etc…The article is rather skimpy and needs further specifications.
Article 8 N˚1 “All sovereign power resides in the nations, nationalities and peoples of Ethiopia” is a formulation that is meaningless since nowhere has it been indicated what “nations, nationalities and peoples” refer to, as I indicated above. Why not simply state that “All sovereign power resides in the citizens or peoples of Ethiopia”? In my view, this would in no way weaken the intention of the article.
Article 40 N˚ 3 “The right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in the peoples of Ethiopia. Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange”. If the Ethiopian state is the sole allocator of land, and no one individual or corporation can claim proprietorship of any land or undersoil resources, how does the transfer of property from one individual or corporate person to another occur? Must all land-based properties return to the State before being transferred again to another individual or corporate person? In truth, since the present constitution has been in effect, this has remained more of a fiction than a reality: it is generally known that urban houses and rural lands for sale or lease derive their value more from their actual location and not from the quality of the structures built on them.
Instead of continuing this fiction, the Ethiopian constitution must, as a minimum, allow the ownership of the land on which a citizen can build (or buy) one’s domicile, and if a homesteader, as the term itself indicates, a domicile and an adjoining piece of land. The size of the plot in either case can be determined by law, after much consideration of land availability in the particular area. It can be determined, on the other hand, that all other land and undersoil resources not under the immediate ownership of particular peoples may remain in the possession of the Ethiopian state. Perhaps more to the point, each ethnic group or people, because presumed or effective owner of the land in which it inhabits according to the principle of self-determination, should decide how to dispose of its land. In this case, the Ethiopian state will have to make any decision concerning land and undersoil resources in agreement with the people of the land.
Article 46 N˚1 “The Federal Democratic Republic shall comprise of States”. The Constitution has referred to Ethiopia as a state, and the same word is being used to refer to the regional enclaves known as Killils. If we desire consistency and clarity, the term State, as I indicated previously, should be used only in reference to Ethiopia as a whole. The enclaves that every Ethiopian people or ethnicity occupies historically should either be referred to as Killils or regions. By this same logic, it should follow that Ethiopia should not be limited to just 11 or 12 Killils only, but each ethnicity or people having its own historical territory, language and culture, should be considered a Killil automatically regardless of its land or population size. This would indeed reflect a true democratic spirit.
The question then how to divide Ethiopia into substantive administrative units that is most effective for the country becomes an altogether different consideration. The fact that I proposed that Ethiopia be known as a Confederation of Ethiopian peoples does not entail that each ethnicity has or should have its own administrative region. This is the reasoning that has inspired the current constitution and led to its many contradictions. Being recognized as a Killil should not lead automatically to being de facto a separate administrative region. Allocating a particular people a Killil status should only signify acknowledgment of its historical territory, culture and language and the freedom to enjoy them. We have seen the arbitrariness of the constitution in assigning the Killil status to some peoples and not to others. The only way to resolve it is to recognize that each people has its own Killil or region without this signifying automatically that it become automatically an administrative unit.
As far as partitioning the country into substantive administrative territories, Ethiopia would be served best if she is divided into smaller, territorially and demographically comparable subdivisions, than the current disproportionate and haphazard divisions. This can be done easily by dividing the existing larger Killils into their respective subdivisions or Awrajjas (counties) – each of these can be further divided into their respective Weredas, etc. – and linking federal representation directly to them by eliminating altogether the notion that each Killil consider itself and act as a quasi- autonomous state. Even if the number of these Awrajjas will be considerably higher, the outcome will have a more cohesive and stabilizing effect on the Ethiopian State as a whole. It will also have the net result of discouraging ethno-nationalism, which, as we have seen, has had a most deleterious effect on Ethiopia’s unity.
Article 49 N˚5 “The special interest of the State of Oromia in Addis Ababa, regarding the provision of social services or the utilization of natural resources and other similar matters, as well as joint administrative matters arising from the location of Addis Ababa within the State of Oromia, shall be respected. Particulars shall be determined by law”.
It is inevitable that Addis Ababa will continue to expand and more land will be needed from Oromia. This, as we have seen recently, has had many legal, political, economic and social difficulties that the constitution does not seem to have anticipated. The following questions need to be answered before a reasonable solution can be proposed: since it is presumed that each ethnic enclave or Killil is entitled to its own land and resources (in the most comprehensive sense of the word), how does the entitlement of an ethnic group to its land must be interpreted. As a collective ownership of the people of the land? Are the people of the land renters of the Ethiopian state? Stating that the land belongs to the State, meaning the Ethiopian State, can lead and has led the government to violate the very rights of self-determination of the peoples of Ethiopia. If the principle of self-determination is to be upheld, each people or ethnic group in Ethiopia must have complete ownership of its land, and the federal government should only use the lands of ethnic enclaves in agreement and with the permission of the people of the enclave as indicated above. What we have seen with the previous regime is that the notion that land belongs to the State creates not only many inconsistencies, but leads to the violation of human and civil rights of the people whose land has been considered for use by a contiguous region or the Ethiopian State. This can be obviated by eliminating the very notion that land and its resources belong only to the Ethiopian state.
In Ethiopia, land tenure varies from one ethnic enclave to another. The Ethiopian constitution must respect the traditional uses of land as long as they do not violate the human and civil rights of their members. In fact, many of the disputes about land within ethnic enclaves find effective solutions often without making recourse to the federal judicial system. This should be respected rather than challenged.
Article 87 deals with National Defense. There is really nothing to review or amend in the article itself. Except perhaps to note how deeply the previous regime ignore it completely. However, I would like to ask, as a corollary to this article, whether Ethiopia should recognize the possibility of having popular militias, or armed groups of any size, alongside the National Defense Force, established by particular Killils. This is not to put in doubt at all that the militia and other spontaneous armed group have done an invaluable service and showed exceptional courage in repelling TPLF’s deranged attempt to regain power over Ethiopia. If Ethiopia is to redraw her federal structure, I believe that a strong armed-force, drawn from all ethnic groups, should be sufficient by itself to protect and maintain the integrity and sovereignty of the Ethiopian state. I believe that, even though the right to bear arm could be considered under certain circumstances, the existence of standing popular militias beholden to their respective enclaves can only lead to more instability.
Samuel Wolde-Yohannes is a Professor of Philosophy Mount San Antonio College
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