By Bona Geshe
The incumbent is playing with fire by manipulating the constitutional system to stay in power while failing to live up to its democratic promises
On 23 April, UN Secretary-General Antonio Guterres stated that the COVID-19 public health emergency has created a global social and economic crisis. He also warned it is fast becoming “a human rights crisis”. Authoritarian governments across the world are using the pandemic as an excuse to grab power.Hungary became the first to be tagged a “coronavirus autocracy” soon after the World Health Organization (WHO) declared COVID-19 a public health emergency of international concern. In Ethiopia, the National Electoral Board (NEBE) moved to cancel the general election scheduled to be held on 29 August. A state of emergency declaration soon followed to tackle the outbreak.
However, the overlap of the pandemic and election is being used by the incumbent to unconstitutionally extend its term beyond its five-year term. This is alarming especially in light of a report by Amnesty International detailing torture and extrajudicial killings being committed by the incumbent.
The 1995 federal constitution provisions require elections to be held every five years, in no ambiguous terms. Despite opposition, the outgoing House of Peoples’ Representatives (HoPR), which the now-defunct EPRDF party won 100 percent of in the last general election of 2015, requested the House of Federation (HoF), the upper house of the parliament, also controlled by the incumbent, to extend its power via constitutional interpretation.
In turn, the HoPR requested the Council of Constitutional Inquiry (CCI) to investigate and submit its recommendations to the HoF. In late May, the CCI concluded days of televised expert opinion hearing on national television, a move opposition groups criticized as an elaborate power grab.
Constitutional interpretation has been a source of heated debate in academic circles since the adoption of the constitution itself. Unlike other jurisdictions like the United States and Germany, where either the Supreme Court or a separate Constitutional Court interprets the constitution, Ethiopia opted to entrust the upper house composed of representatives of Nations, Nationalities, and Peoples (NNPs) of Ethiopia, with the power to interpret.
Besides being a political pact among NNPs of the country, the constitution is also “the supreme law” of the land. The HoF lacks the legal expertise to deal with complex constitutional recommendations submitted to it. The CCI is designed to fill this inherent flaw of HoF. However, the power of CCI is limited to deciding whether the application before it necessitates constitutional interpretation. It can either reject the application or submit its recommendation to the HoF where it believes it necessary to interpret the constitution (Article 12 of Proclamation 798/2013). The ultimate decision power rests with the HoF which will most likely endorse the position of the incumbent government, notwithstanding CCI’s recommendation. This amounts to extending its own term beyond what is specified under Articles 54 and 58 of the constitution.
Perhaps the most concerning aspect of the incumbent’s insistence on extending its power beyond the constitutionally mandated period is the fact that the outcome of the interpretation process is known in advance. The HoF is not an impartial arbiter on a case involving the term limit of the HoPR, since the decision to extend the latter’s term also extends its own.
In what seemed to predict the current constitutional crisis, the Federal Deputy Attorney General Gedion Timothewos Hessebon, a constitutional lawyer by training, who presented the now-famous “four constitutional options” the government proposed, reached the same conclusion in a co-written article published in 2017. The absence of an impartial arbiter and the inherently partisan nature of the constitutional interpreter could create serious problems.
As the successor of the now-defunct EPRDF the incumbent government of Abiy Ahmed’s Prosperity Party (PP) controls the vast majority of HoF seats. If the CCI decides the current issue needs constitutional interpretation, the only opposition in HoF’s deliberation could only come from members of Tigray People’s Liberation Front (TPLF) which—although constitutionally suspect itself—has decided it may proceed with elections at the Tigray Regional State level as scheduled; defying NEBEs cancelation.
Ultimately, it is a futile exercise to expect non-partisan interpretation from the HoF. Extending general elections for a mere purpose of extending the incumbent government’s power creates a dangerous precedent.
The HoPR requested CCI for the interpretation of three constitutional provisions: Articles 54(1), Art 58(3), and Art 93. The cumulative reading of Articles 54 and 58 require the general election for the HoPR to be held every five years, one month prior to the expiration of the House’s term. There is no ambiguity.
The overlap of state of emergency declaration on grounds specified under Art 93 by itself does not warrant canceling one of the most sacred foundations of modern democracies: an election. After all, Ethiopia held an election even at the time of the Ethio-Eritrean war of 2000, while international conflict is one of the exhaustive lists of grounds that warrant a declaration of a state of emergency.
On the last day of CCI opinion hearing the Minister of Health Dr. Lia Tadesse and NEBE Chairperson Birtukan Midekssa made a crucial testimony on facts regarding the status of the COVID-19 spread in Ethiopia and the board’s plans to hold general elections. The Health Minister stated that compared to other countries the spread of the outbreak is still low. Other health experts who testified at CCI hearing also noted the possibility that living with coronavirus is a “new normal” for an indefinite period of time until a vaccine or cure is discovered. One of the two scenarios presented by NEBE’s Chairperson made it clear that if adequate measures are put in place to minimize the spread of coronavirus, it will be far costlier and time-consuming—but a free and fair election could be held.
Moreover, the provisions the government wanted to be interpreted should not be read by excluding other pertinent provisions. As Professor Andreas Eshete, a prominent public intellectual who was closely involved in the process of the adoption of the 1995 constitution, testified at CCI’s hearing, the document as a whole is primarily the articulation of the right to self-determination of NNPs as expressed through their elected representatives.
The CCI has a duty to uphold the constitution. Article 9(3) prohibits assuming state power “in any manner” other than that it is provided by the constitution. CCI’s power is included under Chapter Nine dealing with the Judiciary giving it an additional duty to keep its “independence” while determining the matter before it. Recommending constitutional interpretation to HoF when it is clearly not necessary to do so would be a gross violation of CCI’s duty to uphold the constitution above partisan interests.
CCI must reject the case on grounds that the constitutional provisions are clear and do not necessitate constitutional interpretation as required under Art 84(1) of the constitution and Article 16(1) of Proclamation 798/2013. The low level of the coronavirus spread in Ethiopia so far does not make holding the election impossible given adequate measures are put in place to curb the spread of the pandemic during an election, as testified by NEBE’s chair.
It has been more than two years since Abiy Ahmed took office, propelled by years of Oromo protests, which later spread to other parts of the country. Abiy was widely hailed as “the first Oromo prime minister” who would address popular grievances of the Oromo and other nations’ demand for the right to self-determination and equality as constitutionally guaranteed. On the contrary, the fate of Oromia’s autonomy and the future of the multinational federal structure, in general, have never been more threatened.
The reform priorities of the prime minister in the last two years made it clear that his vision aligned more with dismantling the multinational federal structure in favor of a more centralized government at the federal level. Despite the premier’s rhetoric of commitment to the federal structure, his administration’s practice is reminiscent of the pre-1991 unitary government’s vision of Ethiopia, which unsuccessfully tried to forcefully create a nation-state along with Amhara socio-cultural identity through systemic assimilation.
Abiy’s administration went on the offensive to weaken Oromo nationalism. Pro-Oromo rights leaders in the ODP including Lemma Megersa and his team (popularly known as “Team Lemma”) were removed from influential positions and prominent politicians who led the struggle to reform from within EPRDF silenced. Lemma later publicly denounced the premier’s move to dissolve EPRDF—rather than democratize it—in favor of pro-unity party, a precursor for geography-based federalism as opposed to multinational federalism.
Dissolution of the EPRDF to form a new party is seen by many as a rupture from its predecessor mainly by downplaying collective rights of NNPs as constitutionally guaranteed since it would prioritize individual mandate instead of a collective mandate for nations and nationalities of the country; the ideology upon which EPRDF formed.
The autonomy of Oromia and the right to self-governance of the Oromo have been severely encroached upon by the federal government. Swathes of western and southern Oromia are still under federal command posts without any oversight from the parliament as required under Articles 51(14) and 55(16) of the constitution and Federal Intervention Proclamation No. 359/2003. Millions of citizens in Oromia were under the internet and other communication blackouts until recently. The situation has involved serious human rights violations by security forces. Amnesty reported that security forces extrajudicially executed at least 39 people in East and West Guji Zones of Oromia since January 2019.
As such the country in general and Oromia in particular has been in a constitutional crisis for a while. The incumbent government’s elaborate drama of constitutional interpretation is a sham attempt to pass the power grab as constitutional. The postponement of the election without any meaningful political dialogue might be the straw that will finally break the camel’s back.
The real constitutional dispute
Another pertinent fact ignored in CCI’s opinion hearing is Tigray Regional State’s decision to hold elections at the regional level as scheduled, notwithstanding NEBE’s cancellation. This is relevant for at least three main reasons. First, the incumbent in Tigray, i.e. TPLF, was elected to office as a member of the now-defunct EPRDF in 2015. Secondly, unlike PP, the regional government of TPLF admits Articles 54 and 58 are clear and cannot be extended through constitutional interpretation.
Thirdly, this type of ‘constitutional dispute’, in the strict sense of the term, should have been brought before CCI. Tsegaye Ararssa, an Oromo activist and scholar of Ethiopian constitutional law, argues that considering an abstract constitutional review goes against CCI’s precedent when it refused to conduct one when Oromia’s government requested regarding the Special Interest of Oromia on Finfinnee constitutional clause.
Tigray has also declared a regionwide pandemic state of emergency as it’s empowered to do under Article 93(1). This is another instance of a clear constitutional dispute requiring constitutional interpretation. With Tigray’s plan to hold regional elections as scheduled, it is on a collision course with the federal government. Although the constitution lacks a federal law supremacy clause, a state of emergency decree empowers the federal government to suspend political and democratic rights. However, it may not suspend, inter alia, Article 1 on the federal structure, and self-determination rights of NNPs guaranteed under Article 39, which Tigray is invoking.
Abiy’s administration did not assume the federal government leadership out of the blue. It was the result of popular protests against EPRDF’s decades-long dictatorship and violation of constitutionally enshrined individual and group rights. In effect, the current government is a caretaker whose term must end with the term of the HoPR this coming October 2020.
Most opposition parties with significant constituencies want dialog on how best to deal with the general election while fighting the pandemic. A unilateral decision to extend government through a sham constitutional interpretation could become a serious challenge to a long-awaited transition to democracy by dashing hopes for a free and fair election.