Tesfaye Yehualashet 05-05-20
For everyone that have been following the political dynamics of Ethiopia’s recent past, it is in everyone’s memory that after four years of street protests, the “late” ruling Ethiopian People’s Revolutionary Democratic Front (EPRDF) elected Abiy Ahmed Ali, Prime Minister on 2 April 2018. The incumbent Prime Minister, after admitting the ruling coalition’s shortcomings, pledging reform, preaching of unity and rapprochement Eritrea, was portrayed by some as a sign of new beginning for the multinational diverse country.
After the dusts had settled Dr. Abiy was a victim of his government’s unrealistic promises coupled with lack of a political roadmap, non-institutionalized course of actions; has resulted an intensified and proliferated violence across the country, with communal violence tearing at the multi-ethnic fabric of Ethiopian society,Regional states asserting their constitutional power, an economy on life support, with foreign debt in excess of $28 billion; and many young people without jobs, has become the defining elements and beginning of a new normal.
The disproportionate focus to easy fixes to these challenges rather than addressing the root causes by working to stop communal conflict, preparing for 2020 elections and reforming the dangerously weak economy; exacerbated by the emergence of the COVID-19 pandemic and its consequential “decision by inaction” from the side of the government has positioned the country in a looming legitimacy crisisthat have raised an existential question that have put beyond the uncertain horizons.
The focus of this article is to contextualize the implication of postponement of the 2012 election, analyse the looming legitimacy crisis, explore possible options from normative perspective.
Postponement of the election: a windfall excuse
The very idea of convening 2012 election as per the constitution has been the bone of contention since the assumption of the premiership in the last 2 years. The appetite on the side of the government on holding an election was exceptionally low. And even after the decision of convening an election was reached out of inclination, the decision of holding the election on 29 August 2020 was in apparent contradiction with the constitution.
As per article 58 (3) of the FDRE Constitution, 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 expiry of the House's term. And the term of office of Members of the House of Peoples' Representatives expires on Sene 30 not in September; and that is why elections had been held in the previous elections in May. Some are confusing the annual session of the House with term of office of Members of the parliament. Article 58 (2) is speaking to the annual session of the House which shall begin on Monday of the final week of the Ethiopian month of Meskerem and end on the 30th day of the Ethiopian month of Sene; in which the the House usually adjourn for one month of recess between Sene 30 and last week of September.
On a related topic, though the final mandate of deciding to postpone the election lies on the hand of the House of Peoples' Representatives, the announcement of the National Electoral Board of Ethiopia (NEBE) on 31 March 2020,citing the ongoing and expected impacts of the COVID-19 pandemic, as a windfall excuse for not holding an election at all; cognizant of the facts that electoral board preparations were behind schedule, raising the destabilising prospect of a delay beyond the constitutional deadline even before the pandemic arrived.
The dynamics is further exacerbated from the fire to the frying pan with the declaration of a five-month State of Emergency on 8 April 2020 due to the pandemic; which begs the question of the legitimacy of declaring a SoE for 5 months with a government whose mandate expires in 2 months.
With these contexts, the current Parliament’s five-year term expires in two months; the FDRE Constitution requires new Members of Parliament (MPs) to be elected a month prior to the expiry of the existing House’s tenure on Sene 30 (Article 58 (3)); and with no exceptions to parliamentary term limit; with unofficially postponed elections, COVID-19 pandemic; and a big trust deficit political landscape; creates leadership vacuum, which may lead to a constitutional crisis unless addressed or its damage minimized promptly.
There is excessive focus on the looming legitimacy deficit on the level of Federal government. And this misses the elephant in the room, which isthe similar proximate risks in the 9 Regional States and 2 City Administrations.
With emerging perspectivesfrom experts with diverse background, options such as a consensual dissolution of the Parliament by the Prime Minister, a state of emergency decree, amendment of the constitution, and political elite bargain, are being explored. With a slim possibility of holding an electionin different arrangements and modes, this opinion piece is restricted to assessing possible options from a constitutional and legal perspective.
Dissolving the Parliament
As per article 60 of the constitution, the parliament can be dissolved on two grounds. First, with the consent of the House, the Prime Minister may cause the dissolution of the House before the expiry of itsterm in order to hold new elections before the expiry of the term of the Parliament; which is most of the time referred as “snap election”.And the second is when the President invite political parties to form acoalition government within one week if the Council of Ministers of a previous coalition is dissolved because of the loss of its majority in the House;which is not relevant for the current discussion.In our context, it would not have been that difficult to get the consent of the house. However, in both scenarios, the Constitution necessitate an election with a Parliament within its term of office, which is not the case in this circumstance.
A State of Emergency
The other option that is being suggested is declaring a state of emergency, in accordance with Article 93 of the Constitution. This is both undesirable and dangerous route for the following reasons. First, the grounds for declaring a State of Emergency are an external invasion, a breakdown of law and order which endangers the constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel, a natural disaster,or an epidemic.Apparently, expiry of term of office of Members of the Parliament, including the Prime Minister are not grounds for declaring SoE. Second, it is unconstitutional to think of extending the SoE before the already durationis not expired.Third, the SoE assumes a Parliament within its term and do not have the effect of extending term of office of neither the Parliament nor the members of the Council of Ministers.
Moreover, the five-month long of State of Emergency declared on 8 April 2020 due to the pandemic; still begs the question of the legitimacy of the declaration for 5 months with a government whose mandate expires in 2 months.
For someamending the Constitution, particularly, Article 58 (3), 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 expiry of the House’s term.” The proposed amendment may insert exceptions where under unforeseeable extraordinary conditions (force majeure) elections may be delayed up to a stated period...”, is being proposed asthe least of all possible evils. This has an inherent flow for the following justifications.
First, though the amendment of the provision requires relatively less stringent amendment procedure, and given the Prosperity Party can secure the approval of six out of nine regional states and two-thirds majority of a joint session of the houses of the Federal Parliament; to initiate an amendment (article 104), any proposal for constitutional amendment, should be first supported by atwo-thirds majority vote in the House of Peoples' Representatives,or by a two-thirds majority vote in the House of the Federation or when one-third of the State Councils of the member States of the Federation, by a majority vote in each Council have supported it, it is mandatory to submit the proposal for discussion and decision to the general public and to those whom the amendment of the Constitution concerns.Given the very justification for the postponement of the election is inability of convening public forums, convening the actual election is more feasible than initiating constitutional amendment from matter of practicality.
Second, as members of the House of Peoples' Representatives are agents of the Nations, Nationalities and Peoples of Ethiopia (8(3) and 54(4)), an attempt to amend the constitution to extend their term of office is against the pprinciple of agency by “entering agreement with oneself” poses a clear conflict of interest and is unconstitutional.
The House of Federation is mandated by the Constitution (Article 62 (1)to provide authoritative interpretation of the Constitutional. This has also the following limitations. First, the House does not involve on speculative hypothetical interpretations and its mandate is limited to when a constitutional dispute is submitted (Article 83). Until now no formal constitutional dispute is submitted and cannot be triggered in this scenario. Second, as the “golden rule of constitutional interpretation” prescribes as the provisions of the constitution are crystal clearthere is not the need of interpretinga constitutional provisions with the sole purpose of creating new laws under the guise of constitutional interpretation. Hence,now where there is not dispute formally submitted,constitutional interpretation is not only hypothetical academic exercise but also an attempt of creating new facts out of thin air.
What other alternatives then?
Strengthening and Mandating the House of Federation
Institution building is a continuous process and crisis times like we are excellent reminders of the central role of strong, independent and dynamic institutions. Back to the point, to minimize the damage of the looming legitimacy crisis, strengthening and mandating the House of Federation would be an area to consider for the following constitutional grounds.
In accordance with article 8 (1) and (2) of the constitution, all sovereign power resides in the Nations, Nationalities and Peoples of Ethiopia; and the Constitution is an expression of their sovereignty. As per article 61 of the Constitution the House of the Federation is composed of representatives of Nations, Nationalities and Peoples; and each Nation, Nationality and People shall be represented in the House of the Federation by at least one member and by one additional representative for each one million of its population.
Even though the term of mandate of the House of the Federation is five years, as members of the HoF can beelected by the State Councils themselves, the respective State Councils of the Regional States can nominate members of the HoF before the term of their respective State Councils expire. This will not only serve minimizing the damage as a result of legitimacy crisis but also preserving a functioning institution in case a constitutional dispute emerges and other related mandates.
Explore the option of holding elections by Regional States
The Constitution prescribes for the establishment of a National Election Board independent of any influence, to conduct in an impartial manner free and fair election in Federal and State constituencies.First, the reference to Federal and State constituencies refers to election constituencies that are held to the House of Peoples’ Representatives; and does not incorporate elections to be held to the State Council of Regional States. Second, as it can also be seen from Article 4 (2) of “The Ethiopian Electoral, Political Parties Registration and Election’s Code of Conduct Proclamation No. 1162/2019”, a Regional State can enact regional elections laws that pertain to regional council elections; and the only thing it is expected is to confirm its laws with relevant elections provisions of the Constitution and aforementioned Proclamation. Third, the Constitution impliedly assumes Regional States will establish similar Regional election institutions. When we see article 47 (3) (b) the Council that received the demand for statehood is mandated to organize a referendum within one year to be held in the Nation, Nationality or People that made the demand. In the recent case of Sidama statehood referendumthe NEBE stepped in due to the non-establishment of regional institution by the SNNP Regional State.
In this regard, a practical issue has emerged following the announcement by the Regional State of Tigray to hold its election. Given the circumstances and justifications this is within the constitutional mandate and should be encouraged. However, to hold elections for the 38 seats in the House of Peoples' Representatives, there is the need to get the delegation of power of the NEBE.
Hence, to limit the damage of the legitimacy crisis, a coordinated action of the stakeholders is an election to hold a Regional State level election should be leverage the room for experimentation the federal system provides.
The President maybe provided a role to play
The President is the Head of State, elected by a joint session of the House of Peoples' Representatives and the House of the Federation by a two-thirds majority vote, with a term of office of six years. Though the President has not constitutionally mandated executive power, as a matter of practice it has been actively engaged on executive responsibilities beyond the its powers stipulated in the Constitution.And after the expiry of the term of the House of Peoples’ Representatives, including the Prime Minister and Deputy Prime Minister, entrusting the President to conduct the day to day affairs of government and organizing new elections, without enacting new proclamations, regulations or decrees, nor may it repeal or amend any existing law, maybe explored as a political compromise.
In conclusion, with a slim possibility of holding an election in different arrangements and modes,the looming legitimacy crisis should be addressed comprehensively both at the level of the Federal and Regional levels, with an authoritative course of action with an adequate focus on strengthening existing institutions, to limit a potential consequential damages.
Editor’s Note: The author can be reached @Tesfaye yehualashet and via firstname.lastname@example.org. Views expressed hereabove are in personal capacity only.