A Personal Reflection on the Legality of the Current Ethiopian Constitution
By Habtie Adane
It goes without saying that every state in the human world is a rational actor and is therefore venturing in such a way to protect its own national interests (the core values of national independence, national unity, state sovereignty and territorial integrity, among others) from any possible danger mostly exerted from outside, to maintain its own survival and to maximize its own power vis-a-vis its counter parts. Such national interests, which are in fact a cornerstone of the foreign policies of states, are predicated, among others, on the following two major facts or circumstances. First, the international system is full of anarchy and danger in the sense that the global mission and ambition to effect an overarching world government having the capacity to regulate international relations is too far from over. Second, especially in the realist account of international relations, multiple states do exist with multiple and conflicting interests. Consequently, states have been left nowhere but only a self-help system in which they fear and suspect each other against the backdrop of a core principle in international law conferring on them the right to fully enjoy ‘sovereign equality’ and therefore to interact on an equal legal footing (a dormant practice dominant essentially ever since the Westphalia system of 1640s). In this regard, there are many instances of deviations from the normative principle as many states are still being observed more often than not breaching it (notably, the United States, the world’s number one belligerent state in the eyes of some people, has always been accused of acting in sharp violation of the principle whilst taking advantage of its superiority (military, economic and political leverage) in the global political economy which is marked by uneven distribution of powers and capabilities among states and other actors). But, the case we have in our country Ethiopia is quite an exact opposite of the assumptions and considerations indicated above. It is in fact so ironic to witness the current regime becoming itself Ethiopia’s own enemy causing a significant harm, and posing an existential threat, to the sovereignty and territorial integrity of the country, an internal problem which is assumed to be exposing further the country to its external menace and enemies, not least our historic foe Egypt and even khat addicted Djibouti. Again, the current Constitution does not provide us with a guarantee in that respect, I strongly contend.
The FDRE Constitution, a document pregnant, inter alia, with the danger of ‘Balkanization’ cannot be said to have a legal status in the first place. Neither does it reflect the will of Ethiopians alike; it appears to be more of a political document. For this reason, it cannot be genuinely invoked for its implementation, amendment or interpretation, especially when it comes to exigent (urgent or sensitive) situations like the mushrooming crisis we are confronting right now as a result of the Coronavirus pandemic. In fact, by weighing in on the way the Constitution was framed at first, its legality when especially seen in light of the power of interpreting it which is vested with the House of Federation as a political entity (a practice sui generis in Ethiopia), the existing regime’s track record of translating it into practice and the wider public understandings and conceptions surrounding such document, a jurist would never hesitate to boldly leave her/his truly professional and rational judgment and would find to emphatically declare, on the merits, the constitution unconstitutional and the ongoing so-called ‘constitutional interpretation’ inadmissible while taking due account of the law and its spirit.
Ignoring such facts and being trapped instead in the hocus-pocus subject of ‘constitutional interpretation’ – a political agenda delivered by office holders to their hand-picked sympathizers – accounts, if you will, as an admission into acknowledgement of the baseless argument on the part of the government that the existing constitution is a legal document in real sense. Sadly, individuals who were once much critical of such regime agents along with the Constitution framed by them are now paying homage to them. Even though nothing has changed so far, these people have turned out to be political acrobats all of a sudden.
I propose, the real panacea for our sick/wounded Ethiopia draws attention to consulting with ‘linguistic federalism,’ (including the Constitutional document itself). Most importantly, it is imperative to embark upon an all-encompassing system which makes it possible for a constitutional democracy to take root beneath the Ethiopian soil. Therefore, for me, the issue at stake should have been CONSTITUTIONAL AMENDMENT which presupposes a genuine and an all-inclusive national dialogue aiming at striking a political contract for peaceful transition to a democratic national order in our country. And, it is therefore incumbent on us to contribute to this shared end since our motherland Ethiopia and its future belong to us all!