By Prof Messay Kebede
I am not a legal scholar, still less a constitutional expert. I wrote this piece on constitutional crisis to assess the consistency of the reactions of opposition parties to the four alternatives that the government presented, less so to provide a legal opinion on the proposed alternatives. The initiative of the government emanates from the perception of a real constitutional crisis, since the Ethiopian Constitution has no answer to the question of how to proceed if a situation arises that hampers the holding of scheduled elections.
Still, to circumvent the serious obstacle that the Covid-19 pandemic presents to the holding of the national elections every five years, the government weighed on four alternatives that, it says, are all constitutionally acceptable. They are: (1) dissolution of the parliament; (2) declaration of a state of emergency; (3) introduction of a constitutional amendment; (4) recourse to constitutional interpretation. After pondering on the strengths and weaknesses of each possible option, the government selected the fourth option, which soon after was endorsed by the parliament and sent to the next concerned body.
At the same time, opposition parties reacted in various ways, both to the alternatives that were considered and to the choice that the government made. With the exception of the TPLF, a consensus has emerged on the need to postpone the scheduled elections. It is believed that unless the elections are postponed, the government will be so busy both in preparing and taking part in the elections that it will be unable to focus on the fight against the spread of the virus. What is more, elections cannot be conducted without the full and unimpeded participation of the people, a condition that goes against the very measures needed to stop the spread of the virus, like avoiding large meetings, increase mobility, door-to-door campaigns, etc. Despite this consensus, opposition parties reacted by splitting into two camps: the radical position, on the one hand, and the camp of those that amend the governmental stand or add conditions to it, on the other.
The Radical Position
The radical position is the one popularized by two activists who also happen to be politicians, namely, Lidetu Ayalew and Jawar Mohammed. According to them, the Constitution clearly sets a term limit of five years for any elected government. After this term limit, no government, they contend, has any legal authority, and no provision of the constitution exists that authorizes its extension. True, provisions that deal with national threats and emergencies do exist, but none of them can be used to prolong the mandate beyond the specified term of five years. Neither the stipulation allowing the right to declare a state of emergency, nor the power to dissolve the House of Representatives, can be used to modify the term limit, the reason being that they can be exercised only during the legal time of five years. The same is true of the remaining two alternatives: nowhere is it stated that constitutional amendment or interpretation can be invoked to extend the five-year limit.
One must face the evidence: under no circumstance does the Constitution allow the extension of the term of office of an elected government. The error is to think that this deficit is due to an omission or oversight on the part of those who wrote the Constitution. On the contrary, one must see the absence of a stipulation as a deliberate and well-thought position intent on protecting the country from any abuse of power. How often do we not see governments, notably in third-world countries, extending their mandate by invoking all sorts of pretexts? In appealing to the same subterfuge, the Ethiopian government is doing nothing but prolonging its power beyond the term allowed by the Constitution.
Granted that the Constitution specifically rules out any extension of the lifespan of the government beyond the legal time, what then can be done once we admit the perilous consequences of holding elections in the conditions of an expanding deadly pandemic? According to the radical position, the only way out is to seek a political solution by inviting all legally recognized parties to a discussion with the view of reaching a consensus on how to proceed, given the unequivocal stand of the Constitution against the prolongation of governmental mandate. This political solution is perfectly legitimate, since the Constitution itself resulted from an agreement between political parties, which are then the true originators.
Needless to say, since the political solution effectively suspends the Constitution, no party shall have more importance or authority than any other party, and everything must be decided by negotiated consensus. Obviously, with the expiration of the five years’ limitation, all recognized legal authorities cease and the ruling party becomes a contending party with no more status than any other rival party. The distinct advantage of the political solution over other constitutional manipulations is that it guarantees peace during and after the negotiation because all concerned stakeholders participate with equal status in the process and agree to a consented solution. Any solution, supposedly constitutional or not, outside a negotiated agreement, by the very fact that it is perceived as illegal, will trigger resistance that can lead to popular uprisings. Once the term of office has elapsed, there is just no legal way for the ruling party to impose its solution. In short, it has to recognize contending parties as equals and negotiate with them in good faith.
When one critically examines the radical position, one is struck by the fact that most of its followers are supporters of ethnic-based political parties, like for instance the group of seven parties known as the Alliance for Democratic Federalism. Since they are fervent defenders of the existing Constitution, one would expect that they would move heaven and earth to convince all parties that there is a constitutional solution to the problem at hand. Instead, they argue that the Constitution provides no solution to the problem and that it should be suspended until a political, that is, extraconstitutional, solution is found. To prefer suspension to amendment or interpretation or any other constitutionally acceptable solution is indeed a strange way of asserting one’s absolute commitment to the Constitution.
The trick is to say that suspension is temporary and, as such, does not entail the dropping or modification of the Constitution in any way. As Jawar puts it, the only issue in this particular case is the unauthorized extension of power; the rest of the Constitution is not in question. It is untouchable and remains as it is. Yet, one would really like to know how this assertion can be made with some consistency. For one thing, the proposed agreement between political parties effectively establishes a new government by a procedure that the Constitution does not allow, since it expressly prohibits the seizure of “state power in any manner other than that provided under the Constitution,” which is through the ballot box. The mentioned agreement between political parties has nothing to do with the imperative of being elected representatives of the people. For another, once the Constitution has been suspended and effectively breached in this fundamental way, the argument that it cannot be touched can no longer made. Assuming power by means that the Constitution prohibits opens the door to all kinds of challenges, the logical outcome of which can only be the writing of a new Constitution.
There is more. Even if the path to revision or rewriting is taken, the absolute certainty is that parties with so wide ideological disparities will never arrive at an agreed constitutional settlement. From political parties that do not even agree on the appearance of the national flag, it is pure insanity to expect them to reach a consensus on constitutional matters. So irreconcilable ideological differences can only have one unavoidable outcome: the unleashing of a chaotic power struggle that will lead to armed conflicts and secessions.
What clearly transpires here is that the inconsistency and implausibility of the radical position emanate from the overarching desire to take advantage of the obstacle created by the pandemic to capture political power through unconstitutional means. The accusation, made against the supporters of the position, that their proposal is nothing but a disguised attempt to seize power unconstitutionally is, therefore, largely justified. How otherwise would one explain the flagrant inconsistency of claiming to be a staunch defender of the Constitution while transgressing at the same time one of its fundamental rulings?
The Position of Conditional Agreement
This position either agrees with the government with some conditions or gives its consent to the continuation of the existing government, provided it is done through constitutional amendment rather than interpretation. The genesis of the position is not hard to conceptualize. It arises from the rejection of the constitutional option to dismiss the House of Representatives because dismissal entails a weakened government reduced to conducting day-to-day business and organizing elections. At a time when, on top of the pandemic and heightened ethnic tensions in various parts of the country, threats from regional players are developing against national sovereignty, the option for a weak government is nothing but suicidal. Actually, to opt for the dismissal of the parliament defeats the very purpose of the postponement of the elections. What made the postponement necessary is the need to fight the pandemic, which cannot be accomplished by a government stripped of the very power that enables it to battle the virus.
It is this common sense reasoning that led some opposition parties to support the continuity of a strong government, albeit conditionally. I have particularly in mind Ezema. Seeing the multiple challenges that the country is facing and the proliferation of parties with wide ideological disparities, Ezema argues that the alternative of establishing a transitional government is not a viable solution. Instead, the government should use the authorization to amend the constitution, thereby allowing “the House of People’s Representative to extend the election for not more than one year and ensure government continuity in time of emergency.” Ezema believes that its proposal presents the distinct advantage of being not only constitutional, but also of limiting the extension only to one year. Both measures strongly support the preservation of the democratic process while giving the government the power it needs to deal with the crises besieging the country.
The other party that came up with a conditional agreement is the National Movement of Amhara. In agreement with Ezema, it accepts the necessity of keeping the existing government in power for obvious security and peacekeeping concerns as well as for reasons associated with the need to fight the pandemic. It adds that the government should use the extension of time to engage in a serious dialogue with the opposition and influential elites on the best way to achieve a successful transition to a democratic order, a task at which it has so far failed, despite its repeated promises.
One objection that can be raised against Ezema’s proposal is that the Constitution stipulates that any amendment must be, among other things, “submitted for discussion and decision to the general public and to those whom the amendment of the Constitution concerns.” Discussions and consultations involving the general public cannot be undertaken at a time when the need to fight the pandemic expressly ban social gatherings. The inability to involve the people in the process greatly reduces the democratic legality of the outcome. However, Ezema retorts that the ban can be circumvented by consulting representatives of the public and by using alternative technological means.
Assuming that the obligation to involve the general public could be overlooked, there is no doubt that Ezema’s proposal has the strong advantage of remaining within the constitutional legality. Likewise, the restriction of the extension to one year provides a guarantee against an open-ended prolongation, which would be detrimental to the progress of the democratic process. Nonetheless, the proposal has the distinct disadvantage of amending the Constitution for a problem that is temporary. Not only does the suggested amendment create an improper precedence, but it also trivializes a task as solemn as amending the constitution by inserting a clause related to a passing, though no doubt dangerous, glitch to the scheduled holding of elections. Amending the constitution should be the last resort to consider after making sure that there are no other constitutional means to deal with the problem at hand.
The Path of Interpretation
As already indicated, interpretation is the option adopted by the government. Parties opposing the governmental option have come up with one counterargument, which is that interpretation is applicable only where there is conflict or contradiction between clauses of the Constitution or lack of clarity in the answer it gives to a specific question. At any rate, it cannot be used to extend the determined time that the Constitution allots to an elected government. Yet, on closer look, the existence of conflict transpires if we pay attention to the effects of the pandemic on the Constitution. Clauses that were in perfect harmony develop a conflictual relations under the effects of the pandemic.
The Constitution assigns the responsibility “to conduct in an impartial manner free and fair election in Federal and State constituencies” to the National Election Board. It insists in various places on the imperative of conducting free and fair elections. Clearly, the imperative entails the possibility for competing parties to hold unrestricted campaigns, with all what a political campaigning brings with it. Without this possibility, the election cannot be fair and free, if only because it will favor the ruling party, which can then use its omnipresence and day-to-day incursions into the life of Ethiopians to communicate its views and program. It is not viable to speak of free and fair election if ideas and programs are not debated in an open and publicly accessible manner. Political campaign and all its attendants are superfluous only when the election is a sham, as in the case of dictatorial regimes. In asserting that it will hold a separate election before the end of the present term despite the hurdle of the pandemic, the TPLF is telling those who want to listen that it has no intention of abiding by the conditions necessary for free and fair election.
This is to say that the provision of the Constitution stating that representatives are elected “for a term of five years on the basis of universal suffrage and by direct, free and fair elections held by secret ballot” becomes self-destructive because of the conditions created by the pandemic. It is indeed contradictory for the Constitution to require what the conditions do not permit, namely, free and fair election. If the decision is to proceed by ignoring the adverse conditions, the consequence is that the Constitution will have to sanction the legality of a government that did not meet its basic demands.
Instead of forcing the Constitution into a Catch-22 situation, interpretation provides the justification for postponing the election until such time its basic requirement becomes applicable, thereby removing the contradiction between the five-year limitation period and the imperative of free and fair election. Now, the methods of amendment and interpretation can reach the same result, to wit, the postponement of the election. The difference, however, is that interpretation does not require, as does the act of amending, the participation of the general public, which participation is unrealizable under the present conditions. Moreover, in calling for instances that are restricted to the existing system of government (it only involves the Council of Constitutional Inquiry and the House of the Federation), interpretation limits the whole process to nothing more than the adaptation of the Constitution to a changed but passing situation. In being of a lower level than amendment, interpretation better fits to a momentary and externally induced impediment while being also in line with the Constitution.
In supporting the alternative of interpretation and arguing against the path of suspension, I may have given the impression that I have some attachment to the Constitution. Such a conclusion would not be accurate: I believe that the Constitution has many shortcomings, like its propensity to instill and feed tension between ethnicity and national unity. But I am a realist in that I consider ethnonationalism as an inescapable fact of Ethiopian politics. In contrast to the many who think that it is just a bad dream, I admit that the Derg’s military defeat against ethnonationalist forces has consequences, the most pernicious of which is the ethnicization of politics in Ethiopia. Recognizing the latter as a fact that will not just go away implies that we work toward mitigating its divisive and violent tendency rather than confronting it head-on. That is why I maintain that amendment and interpretation are the way to go to tame ethnic politics in the direction of democratic norms and national unity. The two methods enable us to correct and develop progressively the Constitution according to the norms of a modern society. Above all, they protect us against the temptation of destroying and starting with a clean slate, instead of building on the bequeathed reality. As the modern history of Ethiopia testifies, so long as we do not extirpate this revolutionary temptation, we will be just repeating the past.
In point of fact, a characteristic shortcoming of the Constitution, the very one that explains why many people are skeptical about the option of interpretation is that the organisms involved in the examination of the issue in question are not independent, in addition to all their members belonging to the same ruling party. The omnipresence of the ruling party in all the circles of the state apparatus, combined with the fact that political instances rather than an independent judiciary examine the issue, makes impartial examination unattainable. Agreed, but the same objection applies to all the other options, so that independence and impartiality are nowhere to be found. They are ideals that we can pursue, not yet realities that we can use to assess the legal validity of the discussed options.
This does not, however, mean that the whole exercise and the heated debates it generates are futile. Rather, we must accept the card we have been dealt by the TPLF and work through it. The public presentation of the options and the ensuing debates are the first step for going forward, that is, for improving on the Constitution as we advance, not from the requirements of a given ideology, but from the real lessons of life.
University of Dayton