The incumbent is playing with fire by manipulating the constitutional system to stay in power while failing to live up to its democratic promises
n 23 April, UN Secretary General Antonio Gutterez 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 interpret 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 cancelling 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 declaration of 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.