The Constitutionality of Unilateral Secession: A Response to Fiseha Haftetsion

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The Constitutionality of Unilateral Secession: A Response to Fiseha Haftetsion





TegbaruYared Feb 08. 2013
As a regular reader of Aiga Forum, I had the privilege of reading my colleagues assessment on the unilateral secession and related constitutional issues of the contemporary Ethiopian political arrangement. I found Fisseha’s argument fascinating for it, at least, poses a rarely mentioned angle of argument. In as much as it delved in to a new dimension, however, it overlooked the very essence of the self-determination (including the right to secession) principle and the bearers of this right in the FDRE constitution. This piece challenges the assertions made by Fisseha as he attempted to prove that unilateral secession is not as simple as it is often assumed by politicians and the academia.

Prior to dealing with Fisseha’s argument, I think it is wise to see the justification given by the founding fathers of the constitution for unilateral secession. Since the adoption of the constitution I never heard of any member of the constitutional assembly, who took the opportunity to draft and deliberate on the constitution, or the EPRDF mentioning the assertion made by my colleague in defense of this particular provision in the constitution. Rather, the popular argument in defense of the ‘session’ issue has been that the provision forges confidence to unity and ultimately serves as a uniting device rather than destructing the republic.

Fisseha commenced his analysis by telling his readers that there has been divergence of opinion on the issue of secession by academicians, politicians and the general public ever since the adoption of the constitution. He also picked election seasons as manifestation for the extreme version of this debate on the public sphere. He then asserts, “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.”In a bid to dispute this ‘simplistic’ understanding of this particular provision, he claims, he wrestled with some provisions in the constitution and he concluded that “the bold assumption that the Ethiopian constitution allows for a unilateral secession of its member states and, hence, it’s self-destructive is wrong”.

The gist of Fisseha’s argument is that, since the FDRE constitution includes the ‘supremacy clause’ (Art 9) and the territory of the federation is the territory of the member of the federation (Art 2), the secession of the member states from the federation necessarily requires the amendments of the constitution as per article 105/2 for the phenomenon will contravene what is stated in 47/1; the number of the member states of the federation. Aside from delving in to the (in-) correctness or the politics of secession in contemporary Ethiopia or secession is self-destructive or a uniting device, I challenge my colleague’s assertion and I argue that unilateral secession is not as sophisticated as he puts it beyond the clear provisions enshrined in the constitution and ‘Groups’ are constitutionally entitled to do so and it would be unconstitutional if one adheres to the arguments mentioned by Fisseha.

Among other things, my colleague’s analysis seems to be influenced by the popular (mis-)conception that the right to secession is for regions. Somewhere in his piece, he stated that “member state’s decision to secede from the federation entails constitutional amendment”. Nonetheless, the constitution is clear that the federation is an amalgamation of ‘nations, nationalities and peoples’. The very provisions Fiseha dealt with, art 39/1 and 39/4, talk about the entitlement of the right to self-determination including secession by ‘nations, nationalities and peoples’. This entails that one needs to discern who the bearers of such rights are, in this case Nations, nationalities and peoples. If this is the case, the concomitant issue is the heterogeneity of regional states in the Ethiopian federation. Almost all of the regional states are not homogeneous. Nor do they claim in their respective constitution that they are. In such a circumstance and given the fact that bearers of the rights are ‘nations, nationalities and peoples’, what we need to ask is whether the issue of secession is a uni-dimentional or bi-dimentional phenomenon in the Ethiopian constitution.

A close reading of the Ethiopian constitution tells a good reader that the constitution entertains both internal and external secession, hence bi-dimentional. Most of our regional constitutions explicitly declare that their respective region is inhabited by more than one nation, nationality and people. The third paragraph of the preamble of the Gambela people national regional State, for instance, commences by the phrase ‘we the Anywa, Nuer, Mazangar, and Opo’. This entails that the issue of entertaining the right to secession is not only about ‘one region seceding’ (if it homogeneous) but also the secession of one or more nation, nationality, people from a regional state, hence internal secession. In fact, Fisseha should have dealt with the essence of art 47/2 while he mentions art 47/1 to assert the members of the federation. Art 47/2 states that ‘nations, nationalities and peoples within the states enumerated in sub article 1 of this article have the right to establish, at any time, their own states’.

One may argue that such an internal secession might not change the territory of the federation and has noting with Fisseha’s assertion. Nonetheless, we should not forget that it increases the number of the member states of the federation by, at least, one. My colleague, however, asserted that it requires amendment as per art 105/2 and since amending the constitution is procedurally rigid and demanding, the possibility of realizing internal secession is farfetched. I would say, a simple reading of article 47/3(e) closes this issue. It states, ‘when the new state is created by the referendum, without any need for application, directly becomes a member of the Federal Democratic Republic of Ethiopia’, hence no need for amending the constitution prior to the creation of the ‘new state’ and the said article settles the issue after the creation of the state. When it requires amending article 47/1 to add one or more member states to the federation, as per article 105/2, the two federal houses and two third of the councils of the member states will deal with it for it will be a political fact requiring both a political and constitutional decision.

The other dimension of the right to self-determination including secession nations nationalities and peoples are entitled to in the constitution is external secession (self-determination). I dwelled in to the issue of internal self-determination in our constitution for the sake of asserting the fact that the bearers of the rights are not regions but ‘nations, nationalities and peoples’. Nonetheless, we can also adjust our lenses of argument and analyze the case if it happens to be a matter of external self-determination (secession) of nations, nationalities and peoples from the Ethiopian federation. With regard to this, one can think of a single nation, nationality or people or a region (assuming that it is inhabited by a homogeneous nation, nationality or people) claiming to exercise its right to secession. Taking for grant that such claims are ‘legally’ to be raised by regions, what my colleague Fisseha argued in this perspective is, similarly, that the claiming party will have almost ‘no’ chance of attaining its objectives for the claim affects the number of member states of the federation. It follows that since changing the number of the member states of the federation requires constitutional amendment and as per art 105/2 member states are stake holders of the amendment process, “it [the secession of the claiming part] would not be in the interest of other states to allow it”. He, in a rushed manner, concludes that “…legally speaking unilateral secession doesn’t seem the option provided in the constitution”.

I challenge this argument for two reasons. For one, I believe that it is not appropriate to, negligently or passively, put or suggest a constraining situation to the rights the constitution explicitly entitle nations, nationalities and peoples. For another, I believe that my colleague gave much of a breath on the effect of secession (which is a matter of reduction of member states of the federation and the consequent alteration of the territory of the federation) and used article 47/1 as a basic instrument to support his argument. Let us dissect my colleague’s argument in to pieces. One among others is the issue of ‘What comes first? The right to entertain the constitutionally enshrined right or addressing the consequence of entertaining the right? Most of Fisseha’s analysis relied on the effects to be created on the federation as a result of exercising the right to self-determination, including secession. But, I believe one should give a priori emphasis on the rights and their bearers and then the consequences. Article 39, which explicitly discusses the right to self-determination, is in chapter three and amending provisions in chapter three are set to be rigid (art 105/1). Fisseha understood that what are stated in article 39, which are essentially about the rights and their bearers are constitutionally made to be hardly amendable. He, interestingly, shied away to assert that the right to self-determination, including secession are constitutionally open for the nations, nationalities and peoples to be exercised and told us that it will affect article 2 and 47, hence require amendment of the constitution as per article 105/2.

Let us see the very content of both provisions in the constitution. One can find factual errors in my colleague’s argument. For instance, he quoted article 2 of the FDRE constitution and asserted that “the territory of the federation constitutes the territories of the constituent units”. This is cursory reading of the constitution. Art 2 of the FDRE constitutions reads; “the territorial jurisdiction of Ethiopia shall comprise the territories of the member states of the federation”. This provision is not about the territory of the federation per se; rather it is about the space where the federal government can exercise its legitimate power. The very same article qualifies this assertion as it goes on saying that “its [Ethiopia’s] boundary shall be determined by international agreements”. ‘Boundary’, in the spirit of the constitution, being territory is a matter of international agreement and this entails that if one member state secedes from the federation it will, automatically, be a matter of international affair, not amendment. By extension, the territorial jurisdiction of Ethiopia will be limited to the territory of the remaining member states. On the other hand, Fisseha mentioned the supremacy clause and asserted that any decisions of organ of government should not contravene with the constitution. However, he argued that the relatively lessprotected provisions (article 2 and 47 vis-à-vis article 105/1) should constrain the right to self-determination, including secession which is made highly protected by the constitution (article 39 vis-à-vis article 105/1). This is a self-defeating argument.

With all due respect to my colleague Fisseha, I argue that the constitution is as clear and unambiguous as it should be when it comes to the right to self-determination including to secession to nations, nationalities and peoples. Seen in the angle of the bearers of the right, there should be a wise interpretation of the particular provisions or related others. In the light of the preamble of the constitution, one could not agree more that they should use such a provision as a uniting device for they are the bricks who made the home; the Ethiopian federation.

The Author can be reached at; tegbar2000@gmail.com

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