Wondwossen Demissie Kassa (PhD)
About two weeks ago the Federal Government, through the National Rehabilitation Commission of Ethiopia, announced a decision to dissolve all regional special forces and reintegrate them in the Ethiopian National Defence Force (ENDF), Federal Police or Regional Police Forces. The Federal Government mobilized the ENDF to implement this decision in the Amhara Regional State. Both the decision and the implementation have faced a major backlash from the Amhara Region. The opposition is expressed in different forms including deadly protests in different parts of the Region.
Representatives of the Federal Government and the Amhara Regional Government told the public that the decision is made in the interest of unity. Also, reference is made to the unconstitutional nature of the regional special forces. There seems no serious opposition to the eventual need to dissolve regional special forces in the interest of strengthening the country’s unity. The current objection in the Amhara Regional State relates to the timing and motive for the decision to dissolve the Amhara Special Forces.
The arguments for and against the dissolution of the special forces on practical reasons as it may, this piece questions the constitutional validity of the course of action the Federal Government has taken. It attempts to show that both the decision to dissolve the regional special forces and the way this decision is being implemented in the Amhara Regional State are constitutionally dubious.
The Decision to Dissolve the Regional Special Forces is made by the Prosperity Party, not by the Federal or State Government
The FDRE Constitution allocates state power, both at federal and state levels, to the constitutionally established three different government organs— the legislature, the executive, and the judiciary. No other organ, including a ruling party, is empowered to exercise state power.
As provided under Article 75 of the Ethiopian Electoral, Political Parties Registration and Elections Code of Conduct Proclamation No 1162/2019, a political party does a political activity, as distinguished from what the government organs do. As per Article 56 of the Constitution “a political party, or a coalition of political parties that has the greatest number of seats in the House of Peoples’ Representatives shall form the Executive and lead it.” It is through the executive or other organs of the government that the ruling political party shall get its political decisions implemented. It cannot pass a decision within a party room and get this decision directly implemented without passing through the proper state channel. Contrary to these legal provisions, the decision to dissolve the regional special forces is made by the ruling Prosperity Party. The matter is not as such formally discussed by state organs at federal or regional level.
Federal and State leaders told the public that regional representatives and the federal government have agreed to dissolve the special forces in all the regions. The FDRE constitution does not provide a mechanism where regional and federal leaders come together and exercise state power. The Constitution does not know and allocate power to such a group of leaders. What brought these leaders together is their membership in the Prosperity Party. Though senior Prosperity Party leaders are at times leaders of the states or the Federal Government, acting as a party member/leader is different from engaging as a state actor. That the decision is made by a ruling party the leaders of which are leaders at state or federal level does not make it a decision by the state.
Knowingly or unknowingly the media has presented the decision of the Prosperity Party as that of the Federal Government. This type of reporting has misled the public to treat the decision as having been passed by the Federal Government. The media mischaracterization would make the public unable to see this dimension of unconstitutionality of the decision to dissolve Special Forces.
ENDF is Therefore Enforcing Decision of a Political Party Contrary to Its Constitutional and Statutory Roles
The ENDF has been mobilized to the Amhara Regional State to enforce the Prosperity Party’s decision to dissolve the Regional Special Force. In view of the fact that the Party’s decision has not been endorsed by the federal or regional government organs, the constitutionality of the Defence Force’s move to enforce this decision is questionable.
As per Article 87 (5) of the FDRE Constitution, “the armed forces shall carry out their functions free of any partisanship to any political organization(s).” This is reiterated under the preambular paragraph and Article 9(6) of Defence Forces Proclamation No. 1100/2019. To ensure compliance with these expectations Article 63 (3) of the Proclamation requires members of the Defence Force not to have membership in a political party. Article 87 (4) of the Constitution requires the armed forces to always obey and respect the Constitution. Article 23 (1) of the Proclamation demands loyalty to the Constitution from the defence forces. Among others, this loyalty to the Constitution is expressed by carrying out their functions free of any partisanship to any political organization including the ruling party.
The Deputy Chief of Staff of the Ethiopian Armed Forces seemed to refer to this principle when he criticised/accused opposition political parties for attempting to intervene in discharging ENDF’s function. The Deputy Chief of Staff noted that they would listen to political parties only when they win elections. Unfortunately, this is a major misunderstanding of what the constitution and the Defence Forces Proclamation provide regarding the role of the Defence Forces. The Deputy Chief of Staff statement seems to imply that they would readily enforce decisions passed by the ruling party for the latter being the winner in the elections. However, it is one thing to enforce the decision of the ruling party and it is another to enforce the decision of the government formed by the ruling party. As noted, insofar as the decision by the ruling party has not been adopted by the concerned state organ, it remains the decision of a political party. As such, it does not have more weight and relevance than that of a decision of the opposition party as far as the National Defence Force is concerned. To the extent the decision to dissolve the regional special forces has been made by the ruling party, engaging the National Defence Force for the implementation of this decision would mean engaging it to further the political decision of the ruling party. Finally, the Chief of Staff of the Ethiopian Armed Forces announced to the Ethiopian People that there are no more Special Forces in any of the Regions basing his announcement on the decision passed by the Prosperity Party. These are the kind of activities the Constitution and the proclamation prohibit the ENDF from involving in.
The Federal Government’s Action in Amhara Regional State Amounts to Federal Intervention in the Absence of Constitutionally Required Substantive and Procedural Grounds
Not only is the decision to dissolve the special forces unconstitutional. The manner it has been implemented in the Amhara Regional State is equally so. As noted, the National Defence Force is deployed to the Amhara Region to enforce the decision of the Prosperity Party and dissolve the Regional Special Force. By doing so the military is dealing with the Special Force of the Region which has been a prominent state institution established and financed by the Amhara Regional State and functioning within the regional space for years. As such it is a case of federal action within the territory of the Amhara Regional State — federal intervention.
In a federal form of government both the federal government and states have their own spheres of power. Thus, Ethiopia’s federal Constitution requires the Federal Government and the States to respect each other’s power. It prohibits the Federal Government from intervening on state matters. Exceptional circumstances where the Federal Government may intervene on state matters are envisaged in the Constitution and detailed in the Proclamation that regulates the System of Federal Intervention.
The law provides for three possible grounds for the federal government to intervene in the states. These are: Deteriorating Security situation, human rights violations, and endangerment of constitutional order.
- Deteriorating security situation: Neither the federal nor state government has complained against the Amhara Special Force on this ground. Both the Federal and State governments acknowledged, on many occasions, the significant contribution of the Special Force to maintain peace and security in the region and in the country at large in connection with its role in the fight against TPLF Forces. Indeed, the public protest opposing the decision to dissolve the Special Force is mainly on the ground that the Special Force is needed to ensure security of the Region and its residents. As a matter of fact, to the extent the current security situation in Amhara Region deteriorates, it is attributable to the federal army’s move to disarm the Special Force.
- Human Rights violation: As per Article 7 of the Proclamation, violations of human rights shall be deemed to have been committed where “an act is committed in a Region in violation of the provision of the human rights stipulated in the Constitution and laws promulgated pursuant to the Constitution, and the law enforcement agency and the judiciary are unable to arrest such violations of human rights.” The Special Force has not been accused of such a human rights violation. Nor is there any claim that the law enforcement and judiciary of the region fail to control such human rights violations.
- Constitutional order is endangered: this is the case where the regional government is involved in an act that endangers the Constitution and the constitutional order. Illustrative list of acts that would constitute endangering the constitution and constitutional order is provided under article 12 of the Proclamation. That the Special Force is not envisaged under the Federal Constitution in and by itself does not amount to endangering the constitution and constitutional order. As noted, the Federal Government acknowledged on many occasions that the Special Force has provided significant contribution in reversing TPLF’s aggression which endangered the constitution and the constitutional order let alone it be a threat to the constitution and constitutional order.
It is in the absence of any of the three grounds that the federal army has been mobilized to disarm the Regional Special Force. Not only is the intervention made in the absence of any of the substantive grounds for federal intervention. In addition, the procedure provided to be followed in case of federal intervention has not been followed. Under the law the federal Government would intervene only where it is invited by a regional government or upon authorization from the House of Federation. Neither existed where the federal government authorized the National Defence Force to enter the Region and take steps to disarm the Special Force.
The federal intervention which has been taking place in the absence of any of the legally recognized grounds and disregarding the procedure for federal intervention has been accompanied by widely criticised threatening statements from the Prime Minister and the Deputy Chief of Staff.
Concluding Remarks and Steps Forward
By deciding to dissolve the regional special forces in a party room the Prosperity Party has usurped state power. Such encroachment effectively displaces the concerned state organs and excludes constituencies represented by the Opposition in the House of Peoples Representatives from participating in such a matter of national significance. Similarly, by not involving the Federal and State executive bodies, this approach would make the merit of Prosperity Party’s self-praised approach to involve opposition political parties in such bodies questionable. As noted, ENDF has been mobilized to ensure implementation of the Party’s decision to dissolve the Amhara Regional Special Force as if it has been passed by the concerned state organ. Unfortunately, these problematic and constitutionally questionable measures are being taken under the command of the Prime Minister whom the Constitution entrusts with the utmost responsibility to uphold its rules and norms.
In view of that the executive and the legislature both at Federal and State levels are predominantly constituted by members of the Prosperity Party it is not realistic to expect a major challenge against the Prosperity Party’s decision even if it were presented, for discussion, before the concerned state organs. That said, in principle the decision passed by the Prosperity Party need not be endorsed by the parliament as parliamentarians including those from the ruling party may vote against the proposal from their party. More importantly, bringing the matter to the parliament would have the benefit of giving opportunity to opposing views to be heard and to publicly challenge the government to defend its proposal. By dodging this process, the government avoids this challenge at the expense of the constitutionally required principle of transparency. Furthermore, the fact that the action being taken by ENDF in the Amhara Regional State has not been made following the proper procedure for federal intervention means what is going on would not be treated as federal intervention. That, in turn, would relieve the Prime Minister from his responsibility to provide periodic reports to the Parliament as to the measures taken during the federal intervention.
Unless the constitutionality of such outsourcing of state power to a ruling party is challenged and the Prosperity Party is made to refrain from usurping state power, there is a real risk that it will emerge as a new normal. This is not the first time the Party makes such a decision of national importance and gets it implemented without the involvement of the state organs. The negotiation with TPLF was conducted based on what was decided by the Prosperity Party. The decision to negotiate was made by the party. The negotiating Committee was established by the Party. State organs both at federal and state levels were not involved. It was only after the peace agreement was signed that the Committee reported to the parliament. This agreement is being enforced by the state budget and state institutions though it is essentially an agreement between TPLF and Prosperity Party.
Legally speaking, to the extent the decision to dissolve the Special Forces is unconstitutional, it shall be of no effect. As such, all citizens, organs of state, political organizations, other associations as well as their officials who are required to ensure observance of the Constitution and to obey it, at minimum, are expected not to cooperate with the implementation of the constitutionally dubious decision. Challenging the decision to dissolve the Special Forces would be in accordance with the spirit of the Constitution. This can be done in different forms. First, the House of Peoples Representatives can exercise its constitutional power to call the Prime Minister and question him to explain the constitutionality of the decision and its implementation. Another course of action is that any of the interested Regional States or opposition political parties can challenge the constitutionality of the decision before the House of Federation.
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