Does the Ethiopian Constitution allow for a unilateral secession of the member states of the federation?
February 05, 2013
The explicit constitutional recognition of the right of nations, nationalities, and peoples to secession is one of the highly debated politico-legal issues in Ethiopia. Election times, in particular, are good reminders of the debates surrounding the explicit recognition of secession in the Ethiopian constitution. The opinions of academics and politicians, on the matter, are highly divergent and most of them have tenable reasons to support their premises. They all seem to have reached a consensus on one crucial thing though. The arguments both against and in favour of the explicit recognition of the right to secession tend to unhesitatingly assume that the 1995 Ethiopian constitution allows for a unilateral right to secession of the member states. This piece disputes this bold assumption.
Article 39 of the constitution recognizes an unconditional right to self-determination including the right to secession. There is little substantive requirement as a precondition for the exercise of this right. The requirements as provided under Art. 39 are: (a) when a demand for secession has been approved by a two-thirds majority of the members of the Legislative Council of the Nation, Nationality or People concerned; (b) When the Federal Government has organized a referendum which must take place within three years from the time it received the concerned councilís decision for secession; (c) When the demand for secession is supported by majority vote in the referendum; (d) When the Federal Government will have transferred its powers to the council of the Nation, Nationality or People who has voted to secede; and (e) When the division of assets is effected in a manner prescribed by law. The constitution at a glance, therefore, seems to adopt a more lenient preconditions to the exercise of the right to self-determination including secession even compared to Article 2 of the 1991 Transitional Period Charter which says every nation, nationality, or people has the right to independence if itís denied its rights such as the right to self-administration, equal participation, and promotion of identity, culture, and history.
On the other hand, the supremacy of the constitution is explicitly stated under article 9. Among others, no decision of a government organ shall contradict the constitution. The constitution further states that the territory of the federation constitutes the territories of the constituent units (Art. 2). Article 47 lists member states of the federation. Itís obvious that secession requires the existence of a decision of a government organ such as the concerned council. The decision canít contradict the constitution, in this case article 2 and article 47, as the constitution is supreme. Itís also obvious that a member stateís decision to secede from the federation entails a constitutional amendment. Amending articles 2 and 47 is the only way to legalize a decision for secession.
Two types of procedures of constitutional amendment are provided in the Ethiopian constitution; one that is relatively demanding and the other relatively easier. As per Article 105, all rights and freedoms specified in Chapter Three of the Constitution, Article 105, and Article 104 can be amended only: (a) When all State Councils, by a majority vote, approve the proposed amendment; (b) When the House of Peoplesí Representatives, by a two- thirds majority vote, approves the proposed amendment; and (c) When the House of the Federation, by a two-thirds majority vote, approves the proposed amendment. The right to self-determination falls under the third chapter of the constitution but the provisions to be amended as a result of the exercise of the right to self-determination including secession will be articles 2 and 47 which are out of the provisions listed under article 105 (1). Hence, amendments in relation to articles 2 and 47 shall be conducted as per the procedures stated under sub-article 2 of Article 105 of the constitution. As per Sub-article 2, all provisions of the Constitution other than those specified in sub-Article 1 of Article 105 can be amended only: (a) When the House of Peoplesí Representatives and the House of the Federation, in a joint session, approve a proposed amendment by a two-thirds majority vote; and (b) When two-thirds of the Councils of the member States of the Federation approve the proposed amendment by majority votes.
Therefore, it can be concluded that since a decision to secede entails a constitutional amendment, the other states and the federal houses have a say on such a decision. This will finally constrain the practical implementation of the right to self-determination including and up to secession since it can be assumed that it would not be in the interest of the other states to allow it. This canít guarantee against secession provided that there is oppression but legally speaking unilateral secession doesnít seem the option provided in the constitution despite the fact that many people
think so. We went this far for the sake of exhausting the arguments.
Otherwise, if the argument that the other states and the federal houses have a say on anything that results in tampering with any of the constitutional provisions is tenable, a proposal for amendment inspired by the decision of a member state to secede from the federation will have a less probability of fulfilling the requirements provided under article 104 of the constitution. As per this article, any proposal for constitutional amendment, in order to qualify for a discussion by the concerned general public and a decision by the concerned organs, it should be, at least, supported by two-thirds majority vote in the House of Peoplesí Representatives, or by a two-thirds majority vote in the House of the Federation or by one-third of the State Councils of the member States of the federation, by a majority vote.
The argument of the supreme court of Canada in its decision on Quebecís demand for secession seems to follow the above path. Though many academics criticize the decision of the court for being ambiguous, it explicitly recognizes the right to secession of Quebec particularly under international law but with a qualification that it canít do it unilaterally under the Canadian constitution. This, as per the decision of the court, is because of the stake of the other Canadians in anything that affects the Canadian constitution. There are other important things that demand negotiation between the would be independent state and the parent state such as division of property and debts. The Ethiopian constitution has addressed this issue under article 39 and, hence, itís not an issue for debate here though the decision of the Canadian Supreme Court may inspire us to do so.
There is one ďluckyĒ constituent unit that escaped the procedural hurdles of secession in the Ethiopian case; Eritrea. For the time being, I am not going to dwell on political debates like whether a transitional government can engage in such adventures as allowing a constitute unit to secede, as many academics would like to do, since Article 8 of the Transitional Period Charter of Ethiopia empowers the transitional government to exercise all legal and political responsibilities representing Ethiopia. Neither will I deal with the role of force in the case of the secession of Eritrea. I am interested in presenting the legal aspect of the argument only. As discussed earlier, the Transitional Period Charter recognizes every nation, nationality, and peopleís right to independence provided that they are denied the right to administer themselves
or to develop their culture, or to promote their identity and the like. It can be debated whether these requirements can apply retroactively. But, presumably and from legal point of view, Eritrea seceded from Ethiopia because of the violations of its rights as provided under article 2. Apart from the requirements under article 2 sub-articles (a) and (b) which are vague and unqualified, there was nothing that can stop Eritrea from seceding from Ethiopia. The Charter doesnít talk about the territory or the constituent units of Ethiopia. Neither does it include a provision that talks about amendment that surely would have given a stake to the other constitute units as manifested in all federal constitutions including the current Ethiopian constitution.
As a conclusion, the bold assumption that the Ethiopian constitution allows for a unilateral secession of its member states and, hence, itís self-destructive is wrong. The Ethiopian constitution can be amended and through the procedures listed under article 39 and through amendment a member state can secede (though very unlikely unless some miracle happens that the other members find it in their interest that a member state should exit the federation) but that does not amount to self-destruction. Itís also imperative to emphasize that the Eritrean caseís precedent is not compatible with the present constitutional realities of Ethiopia.
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