Ethiopia requires a legal solution to a political problem

22 mins read
May 12, 2020
by  Mistir Sew

Proponents of the two dominant views on the COVID-19 induced Ethiopian constitutional crisis have now coalesced to articulate their proposed pathways on the current predicament along two main tracks. The incumbent, the opposition, legal scholars and political scientists took center stage. A few fervently advocating a political solution to a legal problem, while others sought a legal solution to a constitutional problem. A minority held the middle ground—proposing an amalgam of legal and political answers.They are all unified by doctrinal confusion.

The multiplicity of options presented by the incumbent (the contents of which were formally tabled for consultative dialogue by Prime Minister Abiy Ahmed and his Deputy Attorney General Gedion Timothewos, and also published by a senior advisor to the Prime Minister, Mamo Mihretu, in Ethiopia Insight on 2 May 2020), are quintessentially informed by a positivist law thinking; they tended to reinforce a notion of options that may not necessarily delight a few groups and pundits within the opposition camp.

The foundational principles that the Ethiopian constitution rests on are not necessarily homegrown – with a few exceptions – and do not gratuitously lend themselves to laissez faire-inspired solutions. The end product, the constitution, is a decidedly positive law: it allocates powers and prescribes rules. It anticipates no means other than prescribed therein for the resolution of constitutional questions. Its rules are not aspirational; they are mandatory. They don’t offer choices; properly understood, they choose a solution themselves – even when the country panders in unchartered circumstances whose regulation could not be read in clearly articulated verses of the constitution.

The political solution pronounced by some in the opposition (most notably by Jawar Mohammed in his 3 May Addis Standard article, but also a few scholars who advocated the pursuit of legal and political mechanisms in tandem) is propelled by a quasi-legal, and in some cases, aspirational assessments that dismiss positivist arguments all-too-casually. Unlike the case in most scientific approaches, their  analyses had pitched proposals without patently predicating the readings on any cognizable normative legal theory; they seem very analogous to variants of natural law theory that affirm the legitimacy of laws based on different considerations (whether it is Aristotle’s “just by nature” or Romans’ “written in the hearts” or Aquinas’ “perversion of law” or Augustine’s “an unjust law is no law at all”) – in as much as they focused  on the political and moral constraints imposed on positive law and unceremoniously repudiated positive law either as defective or unfathomable for the purposes at hand .

The main source of the existing legal problem is Article 58(3) of the constitution, which states: “The House of Peoples’ Representatives shall be elected for a term of five years. Elections for a new House shall be concluded one month prior to the expire of the House’s term.” This term concludes by the end of September of the Ethiopian calendar. The National Electoral Board has already determined that the elections could not be held as scheduled because of the pandemic. The perennial legal question is reduced to: what solution does the constitution itself provide in terms of what ensues of political governance, should a force majeure circumstance arise that makes the holding of a national election unfeasible?

The incumbent, whose views are shared in varying degrees by many of the leading constitutional lawyers in the country (including Yonatan Fisseha, Sisay Mengiste and Bantayehu Demile) as well as several actors in the opposition camp, seems to have concluded that the constitution offers four potential options—each having their own pros and cons. The first three options assess the substantive merits of three constitutional provisions. Forced into the same list, the fourth option seeks a procedural refuge, although still within the constitution’s ambit: it refers the matter to the House of Federation in the form of constitutional interpretation.

In the following sections, we shall consider each option, its feasibility and legitimacy within the constitution’s framing, and furthermore submit on counter-reactions, mainly a rebuttal from Jawar Mohamed.

Option One: Dissolving the parliament under Article 60

The incumbent assumes this option may be considered as a legally available avenue under the circumstances, but sees certain shortcomings mainly from a pragmatic standpoint: limited legislative and executive powers, lack of extension to the regional states, and overall weakness of the government. In proposing this solution, though, the incumbent has also, from the beginning, highlighted this option’s weakness – that a counter-argument may arise which holds that Article 60 could not be used as a means for extending government power beyond a constitutionally set term or for holding a delayed election. This thinking is compatible with the position taken by and narrated in the Constitutional Commission’s minutes twenty five years ago which directed that at the latest, dissolution procedures could only be invoked within six months preceding a parliament’s term limit.

Jawar argues that this option is not legally available for two reasons: (1) “[t]his article mainly pertains to a situation where a coalition government breaks down due to differences between political parties, which leads to the loss of majority in parliament.” (2) [t]his can only happen within the five-year limit of the Prime Minister of the Parliament, and cannot be used as an instrument to willfully extend the mandate of a government whose terms has expired.”

While Jawar’s interpretation of Article 60 is not unreasonable, structurally, it seems to overlook the disjunctive “or” in sub-article (3), which suggests that the Prime Minister may dissolve the House under either sub (1) or sub (2). His reading that the whole provision is designed for matters of coalition breakdown is not a matter of certainty. The second argument, on the other hand, is simply a restatement of the government’s own concern and introduces no novel thoughts. That argument aside, the problem of reliance on this article is compounded by the fact that it only pertains to the dissolution of the House, not the whole Parliament (which includes the House of Federation).

Both the opposition’s approach that dismissed its applicability and the incumbent’s pragmatic pros and cons analyses overlooked the constitutional design of referring the matter for interpretation to determine whether it applies in these circumstances. In any case, such kinds of interpretive issues could rightfully be referred to the House of Federation for constitutional interpretation, although, for more compelling reasons depicted above (i.e., even if legally feasible, it creates a weakened government at the most critical time when a strong governance is sought), this option has not been not identified as a preferred course.

Option Two: The declaration of a State of Emergency under Article 93

The incumbent focused on practical considerations such as legitimacy and credibility –very important considerations from constitutionalism points of view – while the opposition emphasizes on its very applicability. Jawar’s reading notes that this provision’s application presumes that the pandemic lasts until and beyond September, and even if it does, emergency powers cannot inherently extend the government’s mandate beyond its term. This latter line of argument was also articulated in the government’s narrative of challenges.

Neither of these arguments is frivolous. Whether Article 93 permits the current government to declare a state of emergency due to the pandemic, and possibly extend its own term by suspending the applicability of Article 54 on term limits is certainly a legitimate debate that is ripe for constitutional review. Yet, this option’s implausibility is better accounted when it is considered in relation to its effects in undermining constitutional democracy and the credibility deficit it generates, especially if the election is pursued in an emergency setting.

Option Three: Constitutional amendment under Article 104 and 105

Initiating an amendment procedure just to regulate situations of force majeure delays in holding election appears to be the easiest course; yet, the incumbent sees four practical, and in some measures, doctrinal concerns: electoral logistics, public consultation, moral legitimacy and the Pandora’s Box dilemma. While sharing the public consultation problem, the opposition brings back the natural law argument of legitimacy and morality of law rather than directly quarrelling with its positive prescriptions.

Again, from a purely interpretive point of view, the nature, form, duration, and extent of the public consultations for purposes of initiation under Article 104 (not amendment under Article 105) could be considered as ripe for constitutional interpretation. But all the other questions are primarily extra-legal and yet convincing. Besides, in an epidemic setting, two of these questions are inherently linked to a doctrinal inference: electoral logistics and public participation; while on the face both would appear to be practical matters, they will effectively impede any substantive works pertaining to legal amendment of the constitution, and hence present a true dilemma which must be weighed in very seriously. No less convincingly, concerns involving moral legitimacy backlashes that ensue in the pursuit of selective amendment procedures also counts heavily, undermining the virtue of this option.

Option Four: Seeking authoritative interpretation from the House of Federation under Article 83

This provision appears to have caused the most serious doctrinal confusion on both sides.  Apart from saying that this is on a balance the most optimal option, the incumbent has also indicated on a set of constitutional issues requiring interpretation: they revolve around two framings: 1) a default extension of government’s powers after the emergency situation ceases, which shall be used for purposes of transitioning to a smooth electoral preparation; or 2) extending the emergency decree beyond the expiry of term limit in September 2020, until such time when elections could be conducted. On merits, Mamo’s article, to which Jawar seems to respond (along with what’s been stated elsewhere by the incumbent), says “The case at hand requires a binding constitutional interpretation as the constitution does not explicitly address what will happen when an unforeseen event prevents the holding of periodic elections as stipulated by the constitution.” Jawar’s response appears to say – with all due respect – the House of Federation cannot unilaterally write new laws under the guise of interpretation. Interpretation presupposes lack of clarity in what is already written.

The source of all confusion rests on the understanding of what the technical process of ‘interpretation’ actually entails and what role mandated institutions can play, legitimately, in this regard.

In statutory interpretation, the most fundamental cannon is ascertainment of the ordinary meaning of the term to be interpreted. Black’s Law Dictionary defines the term “interpret” as “[t]o construe; to seek out the meaning of language; to translate orally from one tongue to another.” Taken at face value, this suggests that Jawar’s argument cannot simply be dismissed; the House of Federation cannot lawfully introduce a new provision into the constitution, nor can it unilaterally legislate by skipping the constitutional requirements of bicameralism and presentment.

Yet, the science of constitutional interpretation delves well beyond the search for the ordinary meaning of written words to also warrant recourse to context and the reading of texts in light of objects and purposes, and, certainly, to permit immersion in interpretative exercises when a subject matter of significance is not adequately articulated in a constitution. Silence or lack of plain text in a constitutional document does not necessarily denote that there won’t be a constitutional solution in such context.

The formulation of interpretive power of the House of Federation under Article 83 resembles the “cases and controversies” formulation of Article III of the United States Constitution because it says: “All constitutional disputes shall be decided by the House of the Federation.” And it repeats the term “dispute” throughout. Black’s Law Dictionary alternately defines a dispute as: “A conflict or controversy; a conflict of claims or rights; an assertion of a right, claim, or demand on one side, met by contrary claims or allegations on the other.”

This seems to presuppose the existence of a contention as opposed to merely seeking an abstract review or offering an advisory opinion. Whatever this implies, it remains evident that the House of Federation has both powers under the Constitutions and implementing legislations adopted in the aftermath. Under Article 4(2) of Proclamation No.251/2001, the House is conferred with a discretionary power of extending advisory service on constitutional interpretation.

More explicitly, though, Article 3(2) of Proclamation No.798/2013 reads that constitutional interpretation on any unjusticiable subject matter may be presented to the Council of Constitutional Inquiry by one third or more members of the federal or state councils or by federal or state executive organs, which the Council must consider, and if the need for interpretation arises, submit its recommendation to the House of Federation. Simply, duly framed and properly briefed, whether through filings of pleadings by disputing parties or amici, both avenues of submission are open under the laws to seek and dispose requests on interpretation.

In fact, recently Yonatan Fisseha wrote on Addis Standard, the reality remains that democracies around the world resort to courts for guidance when the constitution is silent, or its meaning is contested, playing important role in filling the unavoidable gaps. In this light, the decision of the government and lower house of parliament to seek constitutional guidance from the body that is tasked with interpreting the constitution is not only a legitimate constitutional option, but also the normal thing to do in any constitutional democracy.

This brings the issue back to the natural law versus positive law debate. The opposition attempts to question the ethos and motives of the incumbent and refute the legality of the four options presented. The incumbent makes a legal positivist argument seeking solution within the bounds of the Constitution. The Stanford Encyclopedia on Philosophy under the title on Legal Theories to Remedy Defective Positive Law states in relevant part: “[N]atural law theories hold as strongly as any positivist theory that sound and legitimate adjudication gives priority to a conscientious and craftsman-like attention to social-fact sources and to rules and principles pedigreed by such sources, sets them aside only if and to the extent that they are ‘too iniquitous to be applied’, and tailors the resultant new rule so as to cohere as far as possible with all the other (not too iniquitous) doctrines, rules and principles of the particular legal system in which the judge has jurisdiction”.

If presented with this serious legal question, the House of Federation and its Council of Constitutional Inquiry could chart an interpretive toolbox to enable the incumbent as well as the opposition come to terms with prescriptions of the existing grand bargain within the constitution.

In conclusion, the opposition does not make a compelling natural law case for a total disregard of positive law. Constitutions are autonomous legal documents designed to resolve all constitutional problems. Not because they claim to anticipate and preempt every possible mix of historical and natural circumstances that future generations may face, but because they allow their own interpretation (as living documents) or their amendment, if interpretation fails to address a given constitutional problem.

Ethiopia’s constitution is no different. It could be lawfully interpreted to address the current problem. It does not self-destruct just like a programed explosive on the expiry of a parliamentary term. Those who, by historical happenstance, find themselves entrusted with the task of preserving the constitutional order would hopefully not abrogate their duty in favor of the proverbial smoke-filled back room political deal, as that will restart the clock on the maturing legal institutions and set the country off to another cycle of lawlessness and political bickering. A political solution to a legal problem is called lawlessness. A legal solution to a political problem is called the rule of law.



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