Is Article 39(1) of the FDRE Constitution a still born dead Provision?  

By Samuel Estefanous

Every time I read something about the right to self determination or listen to scholars debating the thorny issue, I have always had this feeling like the principal question is glossed over and the writers or speakers are dwelling on the side issues. 

Any student of international law readily imparts that there is internal and external right to self determination. The latter category is exclusively reserved to the right to secede from an existing union and is hardly enshrined in any supreme law of a given land.  So, one can legitimately contend that it is illogical to argue the point in the context of any given municipal law.  

You know why, because a Constitution is a unifying Charter that ‘brings together or holds together’ different constituting units. A Constitution is the culmination and ultimate expression of the collective will of different segments of a given society to cement and forge a lasting perfect Union. 

A Constitution cannot be an instrument of legitimatizing a break up. A break up will always be a fundamental breach of the Constitution with or without the existence provisions like Article 39(1) of FDRE Constitution.  Any given Constitution sets out by ruling out any possibility of breaking up the Union-be it a Republic, a Kingdom or an Empire. It doesn’t germinate the seed to break up a Union; on the contrary, it incorporates the rights and duties that sustain the Union indefinitely.

That is why Article 39(1) is viewed as a rude affront to logic, law and the primary purpose to adopt a Constitution in the first place.   

Yes, incorporating the external right to self determination in a Constitution goes counter to the very purpose of adopting the Constitution.  In other words the right to secession cannot be defined by a municipal law. It is exclusively in the domain of international customary law, and way beyond the bounds of municipal law.  

I had wanted to give this article a title that reads ‘Breaking up a Nation by Design’, but I opted for the captioned to try to address the question in a context less academic and risk the inevitable riding of an unhinged emotional rollercoaster than pursue the stale course defined by academics- debating if it is a Stalinist or Western concept. I dislike academics who assume that Marxism is an Eastern philosophy. If you ask me, I would say it is an epitome of classical Western Philosophy.  

My interest in the subject was rekindled by a recent debate I had encountered on the youtube Channel of Arts TV. It was hosted by a local Law Office. The format is an open and unapologetic imitation of BBC’s debate forum for the most part hosted and moderated by the likes of Zeinab Bedawi and Tim Sebastian. 

All the same I kinda liked the way the entire debate was conducted except for some ‘glitch’ staged on the part of the viewers in live attendance. The moderators did choose the most possible local knowledgeable scholars on the subject. 

Both the debating speakers as well as the moderators are Ph.D. holders and their specific area and stream of studies are Constitutional law with particular interest on Federalism. In any forum or debate about Ethiopian Constitution one can presumably conclude that they would be the kind to say the ‘last’ word on the subject. 

However the debate lacked depth. It didn’t just lack depth but it smacked of an amateurish indifferent fireside chat on the subject. I mean the debaters repeated all the cliché lines of arguments down to the examples.  Honest to God I expected to hear some groundbreaking fresh perspective on the subject but all I heard was defining the issues one more time in the context of the Balkans and the experience of Quebec.

Incidentally, in any academic hall in Ethiopia when the right to self determination up to and including secession is discussed one is liable to hear more about Finland, Soviet Russia, Switzerland, Quebec and the former Yugoslavia than Ethiopia.  

I think it is more refreshing to discuss the question by drifting off the beaten track, of course with the benefit of staying out of the spotlight. 

1-It is the intention that counts…  

When the drafters of the Constitution incorporated the right to self determination up to and including secession under Article 39, I don’t think they were making references to the American Constitution for ideological inspiration. 

The singular ideological inspiration for the article in question was the  cause célèbre incubated in the student movements of the early 70s that culminated in toppling the Dergue in 1991.It was the generous pump of adrenaline that had germinated the idea in the ‘fire licking’ hot heads of that unfortunate generation. We shouldn’t be paying the price for their wily almost arrogant adventurism, however, we take solace knowing the fact that the right is impossible to exercise in a legitimate manner by Constitutional means and procedures.

2-The FDRE Constitution as a Derivative of the EPRDF Charter…

The FDRE Constitution in general and article 39 in particular could only be fully explained in reference to the political programs of the National Liberation movements in the country.

It makes me cringe with shame when scholars try to explain the FDRE Constitution coaching the theme on the treatises of Hobbs or Locke. This Constitution is the fruit of adventurists cum revolutionaries of the 70s. True, by some fluke it was fated to become a working super law of a Country. It should be treated and studied as a freak piece of legislation.

3-The right to self determination is a uniquely African collective right…

I am not that vain to assume that all segments of Ethiopian society are against article 39. We need to understand that major political forces that matter are defined by the tenets of article 39 of the FDRE Constitution.  

Thus, I would rather try to understand and explain the right to self determination relative to armed struggles waged in its name in the Nigeria, Cameroon and the Congo.

From their cumulative experiences the only viable and possible end we can conclude is the external right to self determination is a criminal endeavor which could only be achieved through armed struggle.  

At the end of the day the right to self determination comes through the barrel of the gun as was indeed the case in Eritrea, South Sudan and more appropriately in South West Africa. 

4-The right to self determination as an inalienable right 

On closer observation the right to self determination doesn’t define a right; it just declares an existing Natural inalienable right preferably in international covenants. So in a way all this hullabaloo is much ado about nothing. It is just like the desirable elusive right to safe environment, good standard of living, the right to habitat and health. No wonder the right to self determination is thus incorporated in the International Covenant on Economic, Social and Cultural Rights.

5-Might is Right…

In a global context, we all are at the mercy of the brutal gangs of five that hold sway at the SC of the United Nations. The Western half of them can accord recognition to Kosovo in blatant blind denial of the ancestral and historical rights of the Serbs.

The Scottish people have the ‘inalienable right’ to exercise their right to secede from the United Kingdom and continuously hold referendums after referendum to break away or not. But when the people of Crimean do the same it becomes a ‘flagrant breach’ of international law. 

By the same token, the ‘civilized’ people of Quebec-unlike the first Nations- are entitled to the right and the people have the right to determine to stay with Canada or to break away through referendum but the people of the Donbas cannot do the same.

Puntland and Somaliland had long declared unilateral independence and they are viable de facto States better administrated and more democratic than some African countries but the whim and caprice of the international community is such that they are denied recognition.

Just for the record, in any one of these countries we don’t find the right to secede from the Unions in their respective Constitutions.   

What I am trying to say is if the worst comes we have more to fear from the whims of Western Countries than article 39(1) of the FDRE Constitution.      

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