Tibebe Samuel Ferenji; May 8, 2020
“It is prohibited to assume state power in any manner other than that provided under the Constitution.”
Article 9(3) of the FDRE constitution
On May 6, 2020, the Amharic version of my opinion on this issue was published on various websites. On May 7, Prime Minister Abiy Ahmed addressed the nation what the position of the government on the constitutional crisis issue discussed by many scholars and activists. The Prime Minister has touched on many of the issues I have pointed out in the opinion I wrote previously; however, he did not go far enough and failed, like many of the opinion writers, to point out and define what “constitutional crisis” is. In my opinion, the government extended its hand to appease those who are screaming from the top of their lungs alleging that we are in a constitutional crisis when it asked for “constitutional interpretation”. For the issue at hand, the answer is clearly stated in the FDRE constitution; therefore, there is no need for a constitutional amendment, constitutional interpretation, or “political solution” as some have suggested. It seems, the medicine that is prescribed is for the diseases that do not exist.
Reading several articles on this issue in various media outlets, it is clear that many of the opinion authors touched on what they think is the solution to the alleged constitutional crisis. However, they have failed to examine whether there is a constitutional crisis to begin with, by clearly defining what it means to be in a constitutional crisis. Most of the opinion writers wrongly assumed we have a constitutional crisis and prescribed “solutions” based on the wrong premise. It is not clear to this writer how one can provide any remedy without identifying and defining the problem. Although some who expressed their opinion exercised their Jurisprudence arguing for constitutional interpretation, they did not directly state which article in the constitution needs constitutional interpretation. Of course, some have expressed their political will that has no bases in law; and some asserted as if the constitution is (sine qua non) silent without “clearly defined answers”.
Because we have a government its term limit ends in September, it does not mean we have a constitutional crisis. I am certain any Medical Doctor who writes a prescription for the Bronchitis when he only heard his patient’s sneeze, will not continue to practice medicine. As such, any remedy provided for any deficiency without defining and understanding the deficiency itself will have a fatal result. Thus, one must examine the core problem first before reaching any conclusion and determine what the cure would be.
One of the opinions I read is authored by my dear friend Mulugeta Aregawi. In his article titled “The Constitution is not silent” published on May 3, 2020, he argued that we have no constitutional crisis and provided his sound legal argument to point out that the constitution is not silent on the issue raised by many legal scholars and activists. Although Mulugeta cited and discussed some of the articles in the constitution to answer the pertinent question, he did not discuss in depth the power of Article 93 of the FDRE constitution. Mulugeta unequivocally stated that the “constitution is not silent”. In my opinion, not only the constitution is not silent, but it speaks loud and clear to answer the question we are facing today. Let us be very clear here; because there is a question, it does not mean we have a crisis. The term limit of the government imposed by the constitution will end before the next election as it stands today. This raises a legitimate question of how the country would be governed until the next election. It is proper and important to raise this question; but, it is not proper to conclude that we have a constitutional crisis without thoroughly examining what a constitutional crisis is and search for a remedy for a deficiency that does not exist.
Most of the opinion writers failed to address the basic question on this matter. What is a constitutional crisis? Without clearly defining what it means, attempting to discuss constitutional crisis would be empty rhetoric devoid of fact-based analysis. Therefore, before discussing why this writer believes that there is no constitutional crisis in Ethiopia, he finds it to be necessary to understand what it means to have a constitutional crisis. Although having open discussions on this issue is new to Ethiopia, this has been an issue in the United States for many years. Particularly since Mr. Donald Trump took office as the President of The United States, the issue of a constitutional crisis has been invoked as a political football. First, we need to ask how we know we have a constitutional crisis before we conclude we are in a constitutional crisis. To answer this fundamental question, we have to know what constitutional crisis means. Victoria Nourse, a law professor, at Georgetown University tells us we can say constitutional crisis occurred “if the president refuses to abide by the court order”. In other words, when the judiciary, the highest institution in the interpretation of US laws, is rebuffed and the president refuse to honor the oath he took to faithfully execute the law, then, we can say the US is in a constitutional crisis. To apply this to Ethiopia, we can claim that we have a constitutional crisis if the Prime minister fails to execute the law faithfully and if he willfully rejects the decision of the House of Peoples’ Representatives (HPR) which is the highest authority of the federal government in Ethiopia. It is worth to note, the Prime Minister is responsible to the HPR as Article 72 clearly states. Defying the HPR's decision by the Prime Minister would create a constitutional crisis in Ethiopia.
Keith Whittington, professor of political science, at Princeton University, defines a constitutional crisis as a moment when the constitutional system itself seems to be breaking down. He further states constitutional crisis occurs by a crisis of operation and by a crisis of fidelity. According to Whittington, a crisis of operation occurs when important political disputes cannot be resolved within the existing constitutional framework. An effective constitution is one that provides a structure for contesting and resolving political disputes. When a constitution can no longer do that and our disputes spill outside the constitutional framework, then the constitution itself is in crisis.Moreover, a crisis of fidelity occurs when important political actors are simply unwilling to adhere to constitutional commitments as they understand them. If consequential political actors determined that a constitutional rule or a prescribed constitutional outcome should be ignored because some other political priority than following the constitution is more important, then the Constitution’s ability to guide and constrain political behavior has, to that degree, been cast into doubt.
Jessica Silbey, a law professor at Northeastern University gives us a clear example of a constitutional crisis. According to professor Silbey, when a State defies to follow the constitution and the president acted against the State to enforce the law we can say we are in a constitutional crisis. Silbey cites the action of President Dwight Eisenhower against the State of Arkansan to make her point. After the United States Supreme Court decided Brown v. Board of Education in 1954, Arkansas Gov. Orval Faubus refused to comply with the unanimous decision of the Supreme Court and instead ordered the Arkansas National Guard to prevent black students from attending Little Rock Central High School. President Dwight Eisenhower insisted the law be followed and sent the 101st Airborne Division of the US Army to enforce the constitutional mandate of equality and protect the black students as they went to school. Based on this example, we could say that we will face a constitutional crisis if the Tigary Regional government, led by the TPLF, “holds an election” as it has threatened to do so without the full authority of the National Election Board. It is not clear to this writer what the remedy would be if this happens. Certainly, it is not advisable for the Ethiopian Federal government to follow Eisenhower's example.
To further understand what it means to be in a constitutional crisis, some political and legal scholars have divided constitutional crisis into four categories: 1. When the Constitution doesn’t say what to do; (2) When the Constitution’s meaning is in question; (3) When the Constitution tells us what to do, but it’s not politically feasible; (4) When institutions themselves fail. It would be time-consuming to address all four criteria listed here and will not add any value to our discussion. It suffices to say number 3 and 4 do not apply to our current situation. Therefore, we will only examine numbers 1 and 2 to test if we can conclude that we are in a constitutional crisis.
First, we address if the constitution tells us what to do. There are to articles in the constitution that gives the ruling party the absolute power to postpone elections and to govern the country until the next election is held and a duly elected party takes control of the government once its term limit is over. Article 60 gives us a clear answer and tells us what to do. However, it will limit the government’s power and ability to fully function to govern the nation. One of the opinions I read was authored by Jawar Mohamed. "Jawar, in his OP/ED, published on Addis Standard on May 3, 2020, titled “Ethiopia’s impending constitutional crisis and why we need a political solution” erroneously invoked Article 60 of the Constitution and stated:“By the government’s explanation, the first option is to dissolve the current parliament in accordance with Article 60 of the constitution and to hold a new election within six months. However, this article mainly pertains to a situation where a coalition government breaks down due to differences between political parties, which leads to the loss of [the] majority in parliament. In such circumstances, the constitution does grant the Prime Minister the power to disband parliament and call for a new election (emphasis added)”.
Jawar’s reading of the constitution clearly exposes his inability to analyze facts and lack of understanding of the constitution in general and Article 60 in particular. Article 60 (2) indicates that “the president may invite political parties to form a coalition government within one week if the Council of Ministers of a previous coalition is dissolved…." Jawar is maybe talking about Article 60(2) when he refers to Article 60; even if that is the case, he did not properly cite it. Jawar attempted to deliberately select what fits his agenda in Article 60 but failed to grasp Article 60’s function in its entirety. He “failed” to "read" or understand article 60(1). Contrary to Jawar’s assertion, Article 60(1) gives the prime minister the power to dissolve parliament as long as he has the consent of the House of Representatives. Article 60 (1) states: “With the consent of the House, the Prime Minister may cause the dissolution of the House before the expiry of its term in order to hold new elections”. This has nothing to do with dissolving a coalition government as Jawar asserted in his OP/ED, but it is clear that the constitution tells us what to do if the government in power needs to postpone an election and govern the country after its term limit ended. If the current government uses this approach, its power would be limited. The government will not be able to enter into new treaties and cannot enact any new laws, but gives the government the opportunity to hold a new election within 6 months.
The second article in the constitution that tells us what to do is Article 93. In my humble opinion, this Article gives us the perfect solution to the current issue at hand. Article 93 of the constitution gives sweeping and broad power to the governing party to lead the country at a time of great crisis. It gives the government the ultimate power to declare State of Emergency pursuant to 93(1a) which states: “The Council of Ministers of the Federal Government shall have the power to decree a state of emergency, should an external invasion, a break down 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 occur (emphasis added)”. Moreover, 93(4) states as follows:
“4. (a) When a state of emergency is declared, the Council of Ministers shall, in accordance with regulations it issues, have all necessary power to protect the country’s peace and sovereignty, and to maintain public security, law and order.
(b) The Council of Ministers shall have the power to suspend such political and democratic rights contained in this Constitution to the extent necessary to avert the conditions that required the declaration of a state of emergency.
(c) In the exercise of its emergency powers the Council of Ministers cannot, however, suspend or limit the rights provided for in Articles 1, 18, 25, and sub-Articles 1 and 2 of Article 39 of this Constitution (emphasis added).”
As we all know, the government has declared a State of Emergency as a result of COVID-19. The Constitution gives the government enormous power under the SoE to basically do what it needs to do to protect the public and protect the constitutional order. The close reading of Article 93(4c) clearly states that the government has the authority to suspend all rights guaranteed by the constitution with the exception of Article 1, 18, 25, and 39. That includes the suspension of rights described in Article 9, and Article 59. In other words, under SoE, the constitution gives the authority to the government in power to extend elections and allow the House of Peoples’ Representative and the Council of Ministers to continue to govern until a new election is held. Some opinion writers have assumed the SoE will be over once the COVID-19 pandemic is over. These individuals have failed to closely read Article 93(4a). Even if the SoE for COVID-19 ends, the government has the right to declare another SoE on the basis of “a breakdown of law, and order which endangers the Constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel…” What can be more dangerous than a country without a government? To protect the constitutional order, the government is vested with the power to declare SoE and even suspend rights guaranteed by the constitution. Hence, the constitution speaks loud and clear how the government term can be extended temporarily when its term limit ends.
Given the fact that the constitution clearly answers what needs to be done to answer the issue we have faced, there is no need for any interpretation of the constitution because its meaning is clear. The notion that we are in a constitutional crisis and we need solutions out of the legal framework or out of the constitutional order is absurd. Those who falsely decry constitutional crisis and demand "political solutions" to their fictional crisis do so with the hostile intent to disrupt the constitutional order and take power from the people using a “crisis” that does not exist. In our lifetime, we have witnessed two transitional governments in Ethiopia. Both transitional governments surpassed their provisional mandate and installed themselves as “permanent” tyrannical regimes without the consent and free will of the people. In our experience, we are aware only despots used the “transitional government” arrangements to position themselves to rule our nation with an iron fist. Is this what we want at this juncture?