Constitutional law for dummies: the flag controversy in Ethiopia
By Liyusew Kidane*
“In the recent few weeks, we are hearing from several legal scholars and EPRDF members that there is a deliberate violation of the Ethiopian Constitution.” Aigaforum, July 2018
“[Gedu Andargachew’s and Demeke Mekonnen’s] speeches were highly charged-full of bravados, “we the Amharas!” In short their actions are national treason, because they violated the rules enshrined in the Ethiopian Constitution” Moges Asgedom, Tigrai Online, July 6, 2018
“Amhara regional state officials including the Ethiopian Deputy Prime Minister Demeke Mekonen rejected the federal constitutional order.” Kalayu Yoannes, Tigrai Online, July 6, 2018
“The Council of Representatives of Tigray passed a resolution expressing its concern about violation of the constitution.” Daniel Berhane, July 6, 2018
The above quotes represent the growing TPLF appeal to constitutionalism since the reformist group in the EPRDF gained the upper-hand. It appears that TPLF considers any conduct, policy, negotiation and liberalization that it does not approve as unconstitutional.
Some Oromo intellectuals joined the choir after the Bahir Dar rally, which they argue violated the Ethiopian constitution. In particularly, the expression of this view by Mr. Negaso Gidada is regrettable. As the Chairperson of the Constitutional Assembly that adopted the Ethiopian Constitution, Mr. Negaso’s opinion calls for conceptual clarification.
I will demonstrate how we must frame controversial issues in their context using the flag controversy as a showcase. We should debate a political, legal or constitutional issue within its proper analytical framework. The above quotes show the absurdity of regarding disagreements in political opinion as a constitutional breach. Whether intentional or not, the conceptual confusion in approaching controversial issues as such have serious repercussions.
Framing the use of controversial flag as a constitutional issue has a chilling effect on the freedom of Ethiopian nationalists to express themselves. However, by framing the issue as a political and historical matter, we can empower informed discussion that ultimately assist our pursuit of truth and reconciliation. The constitutional, legal and political context for debating controversies regarding flag desecration and use of controversial flags are presented below.
The Constitutional Debate: Flag desecration v. Freedom of Expression
The issue of flag desecration has been the subject of constitutional litigation elsewhere in so far as whether the conduct of desecration is protected by the freedom of expression. The US Supreme Court has repeatedly held that flag desecration is a conduct protected by the First Amendment which protects freedom of speech. In 1990, the US Supreme Court struck down the Federal Flag Protection Act of 1989 stating that the government’s interest in preserving the American flag as a symbol did not outweigh an individual’s right to disparage that symbol through expressive conduct. Similarly, Australia, Canada and Denmark consider the desecration of their national flags as merely an exercise of freedom of expression. In contrast, countries like Israel, Saudi Arabia and France consider desecration of their flags by burning as an offense. Ethiopia belongs to the latter category.
The Ethiopian Flag Proclamation No. 654/2009 criminalizes desecration of Ethiopian Flag and Emblem. The prohibited acts of desecration include defacing the Flag by writing or displaying signs, symbols, emblems or picture (Article 23(2)), and disrespecting, dishonoring or damaging the Flag by writing or word or act in public places (Article 23(5)). These offenses carry a fine up to 3000 Birr or one-year imprisonment. These provisions arguably violate the freedom of expression as stated in Article 29 of the Ethiopian Constitution. The criminalization of flag desecration is a constitutional issue. In contrast, whether a person desecrates the Ethiopian flag is a criminal matter, not a constitutional issue.
By burning or defacing the Ethiopian flag, I am not breaching the Constitution. One could be tempted to refer to Article 3(1) of the Constitution to argue otherwise. This provision merely states what constitutes the official Ethiopian flag. It does not prohibit the use of other flags. Only a novice of public law would argue otherwise. Constitutional law does not impose obligations on individuals, but on the state and its institutions. Article 3(1) has no content that imposes negative obligation on individuals not to desecrate the flag it defines.
However, if I burn or deface the Ethiopian flag, I may be violating the Flag Proclamation, and hence committing an offence. If we were to have an independent court with a mandate to adjudicate constitutional disputes, the court may strike out the offenses of desecration of the flag as unconstitutional for their violation of the freedom of expression.
Controversial flags – reframing the debate
In many countries, controversial flags and symbols exist. However, nowhere except in Ethiopia is the controversy considered as constitutional issue. It is primarily a political matter. In few countries, additional legal recourses are taken. For example, Germany has banned the use of Nazi related flags and symbols. In contrast, Japan has not banned its infamous the Rising Sun flag, a flag that still triggers the horrors of the World War II in Korea and China. There has been intense debate about prohibiting the Confederate flag in the US. The apartheid South Africa flag is not legally banned but only a few white-supremacist associates themselves with this flag. I am not drawing any analogy between these controversial flags and the controversies regarding the historic pre-EPRDF Ethiopian flag. However, these countries experience indicates that the debate regarding the use of a controversial flag is not framed as constitutional issue.
In 2009, the EPRDF followed the legal approach for the use of controversial flag in the country. Article 23(1) of Flag Proclamation prohibits the use of one controversial flag, the historic pre-EPRDF Ethiopian flag. The political and historical justification for such a ban is highly divisive. I should note here that the use of OLF or ONLF flags are not prohibited by this law. I am neither aware if Oromia and Somalia regional states issued laws that criminalize the use of these flags. In fairness, even if the use of OLF flag is not criminalized under the Flag Proclamation, the person holding OLF flag may not escape a penalty under the infamous Anti-Terrorism Proclamation.
Article 23(1) of the Flag Proclamation arguably violates the freedom of expression envisaged in the Ethiopian Constitution. Further, this provision can be attacked as unconstitutional as it discriminates between the freedom of a person that expressed himself by holding historic pre-EPRDF Ethiopian flag and the person that expressed himself by holding OLF or ONLF flag.
We must deal with our past and the symbols associated with our identities and heritage. Such discussion should aim in forging a new consensus about a nation we all call home. We are at a crossroad for engaging in a national dialogue about the future. To develop understanding and national consensus, we must properly frame contentious issues in their context.
Framing the flag controversy in Ethiopia as a constitutional issue undermines transition to constitutionalism and rule of law. A conduct we find offensive and concerning does not mean that that conduct is unconstitutional. It might be illegal but not unconstitutional. In short, the temptation to consider others view that starkly differs from yours as unconstitutional must be contained. Let’s approach the flag controversy from this view.