Looking at the Constitutional Distribution of Powers seriously:
Does it Matters to keep the federal balance of power in Ethiopia?

Kalkidan Kassaye

16/10/2010

This section is built-in at this stage only with the intention of evaluating whether the formal division of authority in the federal constitution can be regarded as the principal guideline in the federal practice of Ethiopia. And, it is just to look at the constitutions approach of the venture in a close manner. The public or political discourse during the federal bargain and even these days is that, the states are empowered with the most significant powers in the principal motive of ensuring the absolute sovereignty of the nationalities. This thinking is also dominant among the academics and contemporary Ethiopian elites. However, as far as me is concerned this must be carefully analyzed first from the text and substance of the constitution itself and finally from the practice. Otherwise it will be a hasty generalization without having the objective parameters of measuring such “overriding” role of the constituent units in Ethiopia.

Definitely the nationalities thereby the regional states of Ethiopia are considered to be the forming bricks of the federation and also, at least literally entitled with the triumph rights of self determination and secession. In addition, they are the holders of equal rights with the federation which is substantiated by the principle of federal comity. There are also some financial sources allocated to the states. More than everything, the states are entitled with the residual authorities.

My concern is to evaluate how much the constitution itself leaves a space for the states to put into practice these powers. In other words, how much these rights weight in light of the overall constitutional set up. First let’s see the exclusive federal powers. The center is entitled with the major policymaking roles and in the most substantial affairs of the country. It is practically difficult for the states to come up with a law in the major areas of socioeconomic sphere unless they allege the residual nature of the said jurisdiction which is almost impossible. The center exhausts most of the areas of legislation and by virtue of the theory of “reserve powers”; the states are left with some administration like powers than policymaking prerogatives.

With regard to the framework powers as discussed above and invented through interpretation of the constitution, they are derivative powers by their very nature which may or may not give enough space for the regions. For instance, in most of the cases, the center produced a detailed laws and policy “frameworks” to be implemented and observed by the states which validate my argument. That means there is no substantial guarantee as to the manner by which the center is going to manipulate these areas of competencies. The worst scenario is the absence of comprehensive concurrent jurisdictions in the area of policy formulations.

And again let’s have a look at the residual powers. As argued elsewhere, the center is constitutionally certified to pass legislations is the main fields of “life” in the country. Establishing a state administration, which is the first of the residual authorities that is expressly stated by the constitution for example, is more of an executive and bureaucratic power rather than being an area of lawmaking. The same argument may be produced for the subsequent powers in this provision. I don’t think a constitutional authorization to endorse a state constitution which is subsidiary to its federal counterpart and as some argued to federal legislations can be also comparable with the power of participating on the major policy directions and principles that in one or another influence the day to day deed of the public at large.

On the other way round, neither the states nor the so called nationalities are empowered to participate in the lawmaking process of the centre. From the very foundation, Federal law is a law which is applicable throughout the country and it governs the polity as a whole. So all interested parties, let alone the forming bricks of the state, should have a say on these generally applicable legislation or policy guideline. I was wondering whether the states lacking of legislative power in the center can be compensated by their role as adjudicator of constitutional disputes. But federal practice shows that, this is another concern which is not equivalent with participating at the deliberations and reflecting the views and opinions of the states at the very inception of national policies.

In the constitution, there is also a provision that empowers the center to intervene at the regions whenever there is a failure to bring suspected human right violations to a court of law even without the request of the state. Even if it is a special approach, it is an additional avenue inside the constitution that bestows the federation to manipulate and abuse the states existence. One may argue that, the states may claim their self-determination or in worst cases secession right whenever there exist coercion from the center. But, a cursory look at the faces of the constitution, as I have tried to point out earlier gives the impression that the federation basis itself not at the center rather on the states. So, the states may not assert such rights merely on the grounds of lacking policy making powers. In addition, apparently we have no viable federal entities that are in a position to construe and then challenge the constitutional division of authorities. Last but not the least, there are non-formal devices of coercing the constituent units as discussed in the next chapter. Consequently, one can also question the possibilities of exercising these sensitive rights citreous-paribus i.e. as the constitution stands now. A related matter is the financial authorities of the members of the federation. Constitutionally, both levels of governments share the right to levy taxes and collect duties on revenue sources. But, the central government has monopolized most of the lucrative revenue generation powers under the guise of redistribution role. This can easily be ascertained from the close reading of the sections that are dedicated to deal with financial matters. In the first place, unlike expenditure responsibilities where we find residual power (at least in theory); there is no such thing in revenue source allocation. The residual principle does not hold true for assigning taxation prerogatives.

In sum, if one looks the constitutional division of autonomy critically, the powers allocated to the regions by any of the scheme of arrangements seems colorful but with little significance. I am not denying the states (or the ethno-national groups) recognition as the major actors in the federal system of Ethiopia; rather my argument is based on their role as a policy makers and the authority to reflect their autonomous existence through the obvious apparatus of policy deliberations at the centre. If everything is legislated at the center short of reflecting the states view, though there are some way-outs, the story will be totally changed and the very existence of the system will be questioned. Thus the formal division of power in Ethiopia does not matter to maintain the federal balance power and the impression that the states are the superior actors in the Ethiopian federal makeup seems an argument based on the motives and aspirations of the front pages of the constitution.