My Input on the Ongoing Discourse-
Whether Election should be Conducted as per the Prescription of the FDRE Constitution or Not?
Tsegai Berhane (PhD)
Mekelle University, College of Law & Governance, School of Law
May 3, 2020
These days, putting Covid19 pandemic at the center, it is a common practice to observe politicians, scholars and activists arguing on whether the national and regional elections should be undertaken at the previously set timeframe by the Ethiopian Election Board which is now postponed indefinitely.
With this brief introductory note on why I have authored this short article, let me now proceed to discuss and explain my arguments regarding the topic at hand. I would also like to take this opportunity to underline that this short article is meant to push forward the existing current discourse on the issue. Thus, I am open and willing to consider any civilized and well reasoned comment or critique by my fellow compatriots. After all, civilized discourses are meant to learn from each other.
2. Some foundational pillars for my arguments
Before I proceed to discuss the issue at hand, it would be proper to identify some very important constitutional provisions which could serve as founding pillars in my discussion. These constitutional pillars are:
1. The FDRE Constitution in Art. 39 (3) recognizes that “Every Nation, Nationality and People in Ethiopia has the right to a full measure of self-government which includes the right to establish institutions of government in the territory that it inhabits and to equitable representation in state and federal governments.” However, it should be emphasized that it is hard to implement this right without undertaking national and regional elections. To implement Art.39 (3), the Constitution in Art.46 established Regional States delimited on the basis of their settlement patters, language, identity and consent of the people concerned. Furthermore, the Constitution (in Art.47) identified the member states of the Federation by name. Thus, what we gather from the cumulative readings of these constitutional provisions is—the importance of undertaking periodic elections both at the national and regional levels and the inherent powers of the Regional States to undertake regional elections. So, the right to full measure of self-government which definitely includes undertaking election is a birth right of all Regional States in Ethiopia.
2. The FDRE Constitution in Art.102 also empowers the Ethiopian Election Board to conduct impartial, free and fair election in Federal and State constituencies. To me, this implies that though regional states have the right to undertake elections, they are expected to do it through the Board. Or one can say that the Constitution delegates the right of the Regional States to conduct elections to the Board for convenience and efficiency reasons.
Hence, the issue is what will happen if the Board for different reasons is unable to perform its constitutional obligation?
3. Different scenarios to address the issue at hand
Again, to address the above indicated issue, it might be good idea to see different scenarios from the FDRE Constitution’s perspective. At this juncture, it is good to note that all solutions sought in this short article are based on the FDRE Constitution. What is more, these scenarios should not be taken as hierarchically put but as a menu to select from. Accordingly, the menu could be:
§ Undertake constitutional amendment to postpone the election. In order to do this, first, according to Art. 104 of the FDRE Constitution, there should be an initiation for amendment and this initiation should be supported by a two-thirds majority vote either by the House of Peoples’ representatives or the House of the Federation; or one-third of the Regional State Councils should approve the initiation by majority vote. Then, the initiation should be submitted for the general public and to those concerned (House of Peoples’ Representatives, House of Federation and State Councils) for discussion and decision. Finally, in line to Art. 105 of the Constitution, the amendment decision should be approved cumulatively by all State Councils (majority vote), by the House of People’s Representatives (two third majorities) and by the House of Federation (two-third majorities vote). In my view, considering the existing high level of political parties’ mistrust and disagreement on its rational, it is difficult to undertake constitutional amendment. What is more, it could be argued that it is morally irresponsible to call public gathering to discuss on constitutional amendment in the middle of Covid19 pandemic. On top of that even if we assume against all odds that it is possible to conduct public gathering, we do not have any guarantee that “all State Councils” will approve the amendment by a majority vote. Unless we are not cheating ourselves, it is enough to take the case of Tigray Regional State. It has already declared that if the Federal government is unable to conduct election at the right time it would proceed to conduct its own election. So, in my opinion, in the middle of this high political mistrust among political parties, it is very difficult to take constitutional amendment as a feasible solution to postpone the election. It would simply be a futile exercise.
§ According to Art. 60 of the FDRE Constitution, the 2nd scenario is to hold a new election by dissolving the House of Peoples’ Representatives by the Prime Minister. But, it is good to note that the dissolution has to be done with the consent of the House and before the House’s term expires. In my view, according Art. 60 (1), the Prime Minister to dissolve the House, he has to lose majority in the House and in his Council of Ministers. However, as things stand, I do not think the Prime Minister will do this. The PM is functioning with the understanding that he commands majority vote in the House, especially, after dissolving EPRDF, establishing Prosperity Party (PP) and appointing his handpicked ministers. Of course, one could argue on the process it was done. Thus, I believe, the issue of dissolving the House is long overdue. If at all, it should have been done, it should have been done during the time EPRDF was (legally/illegally?) dissolved and PP was (legally/illegally?) established. In this regard, I must be honest, I was expecting a court cases from any political party which oppose the process (especially TPLF); but for a reason which is beyond my knowledge (even if there was a rumor in town that TPLF was intending to initiate a case), there was no court case on the process. In my opinion, this would have been good opportunity to test the commitment of political parties and courts to the Constitution. Does the inability by the political parties (especially from the side of TPLF) to initiate a court case signifies endorsement of the process? I do not think so. TPLF has been publicly declaring through its officials and media that the process was flawed. However, for a reason which is not clear to me, TPLF was shy to initiate a case. As to why, time will tell. The other ground for dissolving the House is, Art.60 (2). According to this Article, the President may invite all political parties to form a coalition government when the previous Council of Ministers is dissolved. However, since for the reasons explained above, there will not be any possibility to dissolve the House or the Council of Ministers by the PM; it would add no value to discuss Art. 60 (2) and its consequences further.
§ The 3th scenario is request for constitutional interpretation. However, the problem with this scenario is, is it possible to request a blanket constitutional interpretation without identifying a specific provision? In my view, this is a bit difficult. At least, a specific constitutional provision need to be identified and based on that specific provision the spirit of the whole constitution could be sought by way of interpretation. So, unless a specific constitutional provision is identified by all political parties which merits interpretation, this scenario is very hard to implement. In this regard, the specific provision that might need interpretation is Art. 102. That is, whether Art.102 is meant only to federal related elections (constituents) or does it also include regional elections (constituents) as well? If it was meant by the framers of the constitution only for federal related elections, could regional states establish their election body at their own cost? Or should they be subsidized by the Federal government? These are some of the issues that might merit interpretation. Of course, it is good to note that in practice the Federal Election Board has been conducting both federal and regional elections. However, one could argue that it was only done for convenience and efficiency reasons without overruling the inherent right of regions to undertake their own elections. Nevertheless, the most likely argument against interpreting Art. 102 is that the article is clear (unambiguous) and in a situation where the provision is clear there is no need for interpretation. It could also be argued that under the guise of constitutional interpretation, the interpreting body (House of Federation) cannot create new constitutional provision. Thus, it is very unlikely that political parties will reach into agreement to designate Art. 102 as common provision for constitutional interpretation.
§ The 4th scenario is to establish Transitional Government. From the incumbent government’s perspective this is no go area. The PM has already publicly overruled this idea. Even some time in the past, he has clearly and loudly declared that the incumbent government is by itself a transitional government. Hence, in a situation where the incumbent government (which holds the sword, the purse and the media) is not ready for it, the scenario will be hard to implement. Of course, I am aware some opposition parties and activists are advocating for this scenario but minus the powerful stakeholder’s (the incumbent government) commitment and support this scenario could not be feasible.
§ The 6th scenario is to declare a state of emergency to postpone election both at the national and regional levels. Of course, declaring a state of emergency could suspend all political and democratic rights enshrined in the constitution, except Art.1 (nomenclature of the state), Art.18 (prohibition against inhuman treatment) and Art.25 (right to equality). And also from Art. 39 which deals with the rights of Nations, Nationalities and Peoples—sub-Art. 39 (1) (unconditional right to self determination) and sub-Art. 39 (2) (right to speak, to write and to develop its own language; to express, to develop and promote its culture and to preserve its history) are not subject to suspension. Hence, this implies that Art. 38 (the right to vote and be elected); and sub-Art. 39 (3) that deals with full self-government rights of Nations, Nationalities and Peoples of Ethiopia—including establishing government institutions in their respective territories and equitable representation in both state and federal governments—will be suspended. However, this could only be done within the limited terms of governments enshrined in the FDRE and Regional Constitutions. When the terms of the governments (be it federal or state) is over legitimacy crisis will occur and the federation will be at the verge of disintegration. Hence, this scenario will not also be of help to take us out from the predicament we are in.
§ The 7th scenario is to dissolve the Federation for good. As clearly indicated in the preamble of the Constitution, the Federation is a product of the consensual agreement of the nation, nationality and people of Ethiopia. In principle, the nations, nationalities and people of Ethiopia can dissolve the Federation unanimously when they want to. However, in the absence of unanimity, I am afraid; it would be a messy one. It would also be against the grand assertions underlined in the preamble of the Constitution—establishing common outlook, promoting common shared interest and establishing common economic and political community. In addition, for practical reasons, dissolving the Federation might not be the sole power of the nations, nationalities and peoples of Ethiopia. Taking the geo-political importance of Ethiopia, the international community might intervene to promote their respective national interests from the process of dissolution. Thus, dissolving the federation should be the last resort. In my opinion this option should not be considered.
4. Some concluding remarks
Finally, the issue is what would be the way out then? In my opinion, with the assumption to maintain the federation intact as envisaged in the FDRE Constitution, a timely election should be conducted both at national and regional levels as the Constitution prescribes. In my view, we have reached a point where political parties cannot soberly discuss a way out from the critical situation we are in. What is more, since the clock is ticking against us, we need to plan fast on how to conduct election with utmost care. Of course, at this juncture it could be argued that how on earth could we conduct an election in the middle of a Covid19 pandemic?
To address this issue, we need to be honest to ourselves and appreciate the alternative choices we are currently facing—conduct election in the middle of Covid19 pandemic (which is a serious and eminent public health threat) or postpone the election and face the dissolution of the federation through legitimacy crisis. As to me, the choice should not be ‘either … or’, rather the two choices could be done simultaneously with utmost care. Hence, like what they say, if there is a will there is a way.
However, if it happens that it is impossible to conduct election at the national level; it might be good idea to let the Regional States to conduct their own elections and constitute their respective governments on time with the intention to maintain their legal identities. Who knows, this might serve to mitigate the big blow? But, the elections at the Regional States need to be conducted with utmost care—to control Covid19 pandemic. In addition, the processes of elections at the regional levels need to be conducted in open, fair and inclusive way (inclusive of all the existing political parties in the regions).