Constitutional Maneuvering: Derg Officials, PM’s last remark in Parliament, vertical Delegation etc
Amel L. Oct 25, 2011
1. Risks on the practice of Upward Delegation in Relation to Land
Despite relatively clear provisions specifying which powers go to which level of government, recent developments indicate that delegation is also employed when one level of government ‘wishes’ to transfer its power albeit temporarily to the other level of government. Yet at times this raises crucial issues to the front that are hardly debated in public on the risks involved in using such practice. Federal principle of constitutionally enshrined and guaranteed division of power implies that federalism is rigid and that needs the participation of not only both levels of governments but also the citizen to amend it. The Constitution states: ‘the federal government may, when necessary, delegate to the states powers and functions granted to it by Article 51 of this constitution.’ Apparently, the Ethiopian constitution seems to provide for downward delegation only. It is silent as to whether the states can delegate their powers to the federal government. There is no express clause permitting the states to delegate their powers to the federal government. An express clause included in the draft permitting the states to delegate some of their powers, was rejected on the basis of protecting the powers and functions of the states.
Yet, delegated power, particularly if it is upward one, is not without problems. It raises the central issue of whether it is possible to change by legislation the basic tenet of the federal compact. A telling example is the emerging issue of delegation of regional state powers to the federal government on the administration of land. The federal government induced regional states to delegate the power to administer land in their respective territories to the federal government in 2010/2011.
According to Article 52/2d regional states are mandated to ‘administer land and other natural resources in accordance with federal laws.’ Based on this clause regional states have been providing land for lease to investors in their jurisdiction. Allegedly, the federal government claims that regional states have not been efficient in providing land to investors and complained about wide spread corrupt practice across regional states and hence the need for upward delegation. Interestingly, such wide spread corrupt practice is also common at federal level as openly presented to the public through the government owned Ethiopian television on various occasions. Thus some doubt the plausibility of the federal government’s argument.
While the minutes of the constitutional assembly clearly hinted at the fear of federal government taking away powers of states and hence agreed only on vertical delegation, regional states now have without any contest given up this power in favour of the centre. It is hardly possible to do this in a context of political pluralism and where one or more of the states in regional states were under control of opposition political parties. In such context, it is normally expected that the regional state based political party will try to defend its constitutionally guaranteed autonomy. Yet in Ethiopia this was achieved without any contest from any of the regional states as if it is a unitary decentralized system where the centre can take away what it gave by law. In a federal context, this is a serious violation of constitutional principle.
2. Judicial autonomy: ETV: the only tv channel that uses public money to serve as if we are living in the 19th c (media as a ‘mouth piece of the Monarch’/now the government in power) despite constitutional obligation under Art 29 that it should reflect diversity of opinions, aired a self defeating program on October 23 evening. The PM was responding to MPs with respect to list of accused persons and his response was very frightening: ‘we have enough evidences for detaining this suspects’ I am not sure if this reflects the exact translation but the implication of the PMs words to the justice rendering institutions like the judiciary is clear enough. If the PM says he has enough evidences and passes a political judgement which judge in the hell is going to investigate the case free from the influence of political branches, in this case the PM. Are we implying that the courts are subservient to political institutions and nothing more??
3. Final remark relates the release of former Derg officials. This is a case where the government for whatever reason has not uttered a word so far. Thanks for the private media that gave it a modest coverage. Here I must differentiate between three things: personal opinion, informal public opinion and professional opinion. I combine the first and the third for the sake of saving time. For those of us who are aware of Ethiopia’s political history the action of the government is something that deserves encouragement. The new generation particularly seems to close past history of rivalry and vengeance and move forward. Those many are very much positive about it. Old generation (particularly those that have in one way or another been part of the politics of the 1970s) seems to have grudge on this and many seem to be against the release and the lack of transparency from the government. Legally speaking though the matter is very controversial.
The constitution under Art 28 does clearly prohibit amnesty or pardon by the government for the list of crimes known as crimes against humanity. The only thing that the head of state can do is to change death penalty to life imprisonment. The case of the Derg officials is very controversial because a few months ago the Head of state did what He can do within the ambit of the constitution by changing the death penalty to life imprisonment. Whether that is morally right or not is not my interest here but the law allows him to do so. But the latest action of releasing them from jail remains debatable. In criminal law, life imprisonment means literally that the criminal must remain in prison for the whole of his life. But in practice, it means that the criminal may be released from prison after serving a large part of the sentence, usually 25-30 years. In this particular case, they have served 20 or so years and so they are released, that seems the kind of position taken by the government. (some call this parole which is not the same with amnesty or pardon). But is this warranted under article 28 is debatable and needs a careful interpretation. I think the conversion of death penalty to life imprisonment should have been enough to convey the message that ‘the government is not interested in indefinitely holding criminals in jail’ and perhaps a vital thing for political reconciliation. On a normative level are not there many criminals kept in prison and languishing that are as far as the law is concerned less dangerous in terms of the level of crime they committed compared with the Derg officials and why should not we give parole to those first.
If the actions of the government are to be considered as a kind of reconciliation, then it misses a vital point of reconciliation. In Ethiopia as well as in many countries in Africa, reconciliation is based on the principles of full repentance on the part of the criminal and forgiveness from the side of the victim or his family. The detail procedures and processes may differ from one community to the other but the principle is the same.
Ref Article 50(9) and for the record of the debates see Ye Ethiopia Hige Mengist Gubae Kale Gubae (Minutes of the Constitutional Assembly) v. 4 Hidar 14-20, 1987 E.C. (November 1994) discus¬sion on Art. 50