Assefa A. Lemu 2-20-19
Introduction: In a democratic system, constitution sets rules and regulations and guides the decisions of a government of a given country. Unfortunately, in Ethiopia, we are noticing ongoing violations of constitutional provisions which lead to constitutional crises.
Constitutional crises happen when a constitution fails to accomplish the objectives it is supposed to accomplish or where separate branches of governments or different levels of government disagrees on how the government should function or simply where there are serious conflicts among various factions within society. In other word, it is a situation where a constitution is unable to resolve political disputes, or where one party violates the provisions of the constitution, or where there is disagreement on the interpretation of the constitution. A constitutional crisis may lead to paralyzing a government, loss of political legitimacy, or civil war, or collapse of a government.
Constitutional crises mainly take two forms: operational crisis and fidelity crisis. Operational crisis happens when the constitution doesn’t tell us how to resolve a political dispute because it is either silent, or ambiguous, or open to interpretation or its provisions conflict one another. Fidelity crisis happens when the constitution is clear on what to do but the government is not following the constitutional rules or not complying. Operational crisis is about the constitution itself and fidelity crisis is how the government interacts with the constitution.
The American civil war of April 12, 1861 – May 9, 1865 which was fought between the Southern States (forces of Confederate States of America)who advocated for states' rights to uphold slavery and demanded secession from the United States of America and the Northerners (Federal /Union forces) who advocated for the abolition of slavery and denied the right to unilateral secession is one of the wars fought as a result of constitutional crises. Following the victory of Union armies over the Confederate armies and the collapse of the Confederation, the winners of the war introduced Amendment 13 to the U.S. constitution which was ratified on December 6, 1865 and abolished slavery and averted constitutional crisis. To that point, the U.S constitution was silent on holding slaves on which the Southern and Northern states were entered in to controversy and then in to the civil war.
Even though Southerners attempt to leave the Union (secession) was foiled by the victory of Union forces, states like Texas and California occasionally raise secession question. According to Article IV Section 3 of the constitution of the United States of America, secession is possible if the consents of the legislatures of the State concerned and of the congress are obtained. Article IV Section 3 of the U.S. constitution (https://usconstitution.net/const.pdf) says “New States may be admitted by the Congress into this Union; but no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress”. In addition, in Texas v. White case (https://supreme.justia.com/cases/federal/us/74/700/ ), the United States Supreme Court ruled that revolution or consent of the states could lead to a successful secession, but unilateral secession is unconstitutional.
The United States is not the only country that faced constitutional crisis and it wasn’t faced only one time. One can find a list of countries that faced constitutional crises here https://en.wikipedia.org/wiki/Constitutional_crisis.Ethiopia, a country which was governed without constitution from September 15, 1974 to February 22, 1987 and from May 28, 1991 to August 21, 1995, has faced various constitutional crises. These crises have been mainly because of:
Below, I will discuss these cases one by one.
According to Article 9 (1) of the constitution of the Federal Democratic Republic of Ethiopia (FDRE), any law, customary practice, or a decision of an organ of state or a public official which contravenes the constitution shall be of no effect. In this section, I will briefly discuss two cases where the Federal Government of Ethiopia passed or attempted to pass laws/decisions which are contradictory to the constitution and which led to the constitutional crises.
1.1 The Case of Addis Ababa Master Plan
In 2014, the Ethiopian Federal Government tried to introduce Addis Ababa Master Plan, the plan to expand the territorial and administrative boundaries of Addis Ababa, also known as Finfinne, into the neighboring Special Zone of Oromia Surrounding Finfinneby taking over some of Oromo towns and villages. On April 25, 2014, the Ambo students started protest against the plan and on April 28 and 29, 2014, the government security forces killed47 Ambo students for protesting (https://www.bbc.com/news/world-africa-27251331 ). The attempt to implement the Master Plan regardless of the Oromo protests re-ignited another wave of Oromo protests which was started on November 12, 2015 in Ginchi and continued through February 2018 until Prime Minister HailemariamDessalegn announced on February 15, 2018 his wish to resign.
The attempt to implement Addis Ababa Master Plan by expanding the boundaries of the city into Oromia State was a violation of the constitution of the FDRE. The State of Oromia has been established by the constitution and per Article 52 of the constitution, it has the right to self-government. As stated under Article 52 (1) of the constitution, “All powers not given expressly to the Federal Government alone, or concurrently to the Federal Government and the States are reserved to the States”. Constitutionally, the Federal Government was not given a power to annex parts of Oromia and give them to the City Administration of Addis Ababa. In addition, per Article 50 (8) of the constitution, theFederal Government has the duty to respect the powers of the States and vice versa. The violation of these constitutional provisions sparked Oromo protests that accused the Federal Government planning to divide Oromia into two, evict Oromo farmers from their ancestral lands without providing alternative livelihoods, and weaken Oromo culture and language.
The Oromo protests of November 12, 2015- February 15, 2018 made the country ungovernable and forced the Federal government to cancel Addis Ababa Master Plan on January 13, 2016, to introduce two rounds of failed States of Emergencies (the first lasted for ten months from October 9, 2016 to August 4, 2017 and the second lasted for four months from February 16, 2018 to June 5, 2018) under which many were killed and more than 20,000 people were arrested (https://www.aljazeera.com/news/2018/02/ethiopia-mass-protests-rooted-country-history-180219130441837.html ) , Prime Minister HailemariamDessalegn to resign, the government to be changed with the election of Dr. Abiy Ahmed as a new Prime Minister on April 2, 2018, political prisoners including 289 convicted on terrorism charges (https://www.aljazeera.com/news/2018/06/ethiopia-pardons-hundreds-sentenced-terrorism-charges-180615162548089.html) to be released, and other ground breaking political changes to take place in once authoritarian state of Ethiopia. To use the words of Dr. AwolKassimAllo, the Oromo protests have changed Ethiopia (https://www.aljazeera.com/indepth/opinion/2016/11/oromo-protests-changed-ethiopia-161119140733350.html).
The Oromos dearly paid in these protests including the loss of lives of about 5,000 Oromo protesters, physical injuries/disabilities to thousands of Oromo protesters, incarceration of ten thousands of Oromo protesters and supporters (https://www.aljazeera.com/news/2018/01/ethiopia-free-thousands-oromo-political-detainees-180127111131976.html), thousands fleeing the country to escape from inhuman punishment because of their participation in Oromo protest, illegal confiscation of properties and other damages. Fortunately, together withother peoples in the country, the Oromos managed to bring political changes in Ethiopia in the first half of 2018.
The constitutional crisis which was started by an attempt to implement Addis Ababa Master Plan was averted by abandoning the plan, changing the prime minister and its government, by releasing political prisoners and introducing other ground breaking political reforms including pardoning armed rebellions and allowing them to officially and peacefully conduct their political activities in Ethiopia.
1.2 The Case of Administrative Boundaries and Identity Issues Commission
Following the change of Government in Ethiopia in April 2018, more disputes on States’ borders have been seen and more demands for statehood surfaced. The constitution has clear procedures on how to handle border disputes and demands for statehood. Regarding State borders, Article 46 (2) says “States shall be delimited on the basis of the settlement patterns, language, identity and consent of the peoples concerned” and Article 48 (1) says “All State border disputes shall be settled by agreement of the concerned States. Where the concerned States fail to reach agreement, the House of the Federation shall decide such disputes on the basis of settlement patterns and the wishes of the peoples concerned”. Concerning demands to statehood, Article 47(3) of the constitution sets the procedures to follow when any Nation, Nationality, or People demand to form its own state.
However, hoping to resolve disputes on State borders and to address demands for statehood in a short cut way, the Ethiopian Federal Government introduced “Administrative Boundaries and Identity Issues Commission Establishment Proclamation”. As it can be seen from the title itself, the proclamation intentionally ignored using the constitutional term of “state border” and used the pre-1991 term of “administrative boundary” to undermine the federal structure of Ethiopia and to degrade the status of states to the level of provinces in the pre-1991 unitary state of Ethiopia. Thirty three members of the House of Peoples Representatives from the State of Tigray, the state that has serious border dispute with the State of Amhara, objected the draft proclamation (http://aigaforum.com/news2018/mp-denounce-border-commission-draft-121918.htm and http://aigaforum.com/news2018/problem-with-draft-administrative-border-commission-law-views-121918.pdf ) and tried to block it from becoming a law but unable and the proclamation was adopted on December 20, 2018 by majority vote with 33 opposition and four abstention.
The supporters of the proclamation argue that the Commission will simply undertake studies and provide recommendations to the key government bodies mandated to decide on issues but does not make decision itself and this can be considered as part of the search for a solution to border disputes and identity questions (https://addisstandard.com/wp-content/uploads/2019/01/Special-Edition-in-PDF-By-Tilahun-.pdf ). However, the opponents of the proclamation argue that perArticle 48(1) of the constitution, if the concerned states fail to reach agreement on State border disputes, the authority to decide on such disputes have been given to the House of the Federation (HOF). The HOF had no role in drafting and approving the proclamation and nominating and approving of the commission members. As stated under Article 7(3) of the proclamation,the Chairperson, the Deputy Chairperson, and other members of the Commission shall be recommended by the Prime Minister and appointed by the House of Peoples’ Representatives (HOPR). In addition, per Article 3(3) of the proclamation, the commission is accountable to the Prime Minister. Therefore, through this proclamation, the Executive Branch of the Federal Government, particularly the Prime Minister, wanted to usurp the powers and functions of the HOF and that of States by creating parallel institution which is unconstitutional. If establishing the commission is necessary, it should have been established by the HOF that has the primary constitutional responsibility to strive to find solutions to disputes or misunderstandings that may arise between States and that has authority to establish permanent and ad hoc committees to resolve disputes between members of the federation.
The Government of the State of Tigray determined that the Administrative Boundaries and Identity Issues Commission Establishment Proclamation contradicts with the provisions of the constitution (http://www.aigaforum.com/documents/Tigrai-parliament-resolution-on-boundary-and-identity-commission.pdf ) and considered null and void per Article 9(1) of the constitution which says “Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect” (https://www.facebook.com/fetsum1/videos/10218580874982863/ and https://www.youtube.com/watch?v=orjjXfHVY2Y ).
Regardless of the condemnations from different directions, the House Peoples’ Representatives approved the proclamation and established a 40 member (http://www.aigaforum.com/news2019/list-of-border-identity-commissioners.pdf ) Administrative Boundaries and Identity Issues Commission on February 5, 2019. However, in addition to open denunciation of the proclamation, the State of Tigray determined not to cooperate with the commission. It also seems that the composition of the members of the Commission may make the commission dysfunctional. The disagreement between the Federal Government of Ethiopia and the State of Tigray on the constitutionality of the commission is a constitutional crisis created between different levels of Ethiopian Government.
Like it is the case regarding any other laws, violation of constitution can be done either by commission or by omission (by action or inaction). The Federal Government of Ethiopia violated its own constitution by failing to implement what are prescribed in the constitution. The cases in point here are the failure of the government to determine the special interest of the State of Oromia in Addis Ababa as prescribed under Article 49 (5) and to enforce Article 3 (1) which says the Ethiopian flag shall have a national emblem that shall reflect the hope of the Nations, Nationalities, Peoples as well as religious communities of Ethiopia to live together in equality and unity at the center.
The site for Addis Ababa was selected in1887, by King of Shewa, MenelikHailemelekot (Menelik II), and his wife TayituBitul who were attracted by the natural hot spring of Finfinne. After Menelik II became king of kings and Emperor of Ethiopia on November 3, 1889, Addis Ababa became the capital city of Ethiopia. In the last 132 years, Addis Ababa stretched from its center, TulluDalati (AratKilloBeteMengist), to Akaki in the east, Gulale in the west, Garji in the south and Entoto in the north. In 2008, the Government of the State of Oromia who has been worried about the continuous expansion of Addis Ababa, established Oromia Special Zone Surrounding Finfinne that comprises eight towns around Addis Ababa/Finfinne, namely, Burayou, Dukam, Galan, Holeta, LagaTafo-LagaDadhi, Sabata, Sandafa, and Sululta to check the expansion. Unfortunately, the expansion continued and resulted in 2015-2018 Oromia wide Oromo protests.
the nine States of Ethiopia, Addis Ababa is not a member of the FDRE. When
we read Article 47 (1) with Article 49 (5) of the constitution of FDRE, it is
clear that the constitution of the FDRE acknowledged that Addis Ababa is part
of Oromia and separating Addis Ababa from Oromia is unconstitutional. However,
in violation of Article 47 of the constitution, the Ethiopian Government
recruited Addis Ababa and Dire Dawa to make member states of FDRE and increased
the number of members from nine to 11 and calls them nine States and two City
Administrations. The Ethiopian Government intentionally ignored the
implementation of Article 49 (5) of the constitution that says “The special
interest of the State of Oromia in Addis Ababa, regarding the provision of
social services or the utilization of natural resources and other similar
matters, as well as joint administrative matters arising from the location of
Addis Ababa within the State of Oromia, shall be respected. Particulars shall
be determined by law”. Rather than implementing the provisions of the
constitution, the Government opted to postpone the issue of special interest of
Oromia in Addis Ababa by simply appointing mayors who have Oromo names such as
BirhanuDheresa, Kuma Demeksa, Diriba Kuma, TakeleUmmaa. It also intentionally
confused the constitutional phrase of “special interest of Oromia” with special
interest of Oromo and provoked unnecessary hullabaloo.
The inaction of the government on Article 49(5) for about 24 years now became the source of controversy among different factions of the society, mainly among the Oromos who believe they are the indigenous inhabitant of Finfinne (Addis Ababa) and Amharas who argues that they are the founders of Addis Ababa city and the majority in the city. The political parties are also divided along these controversies. Unless tangible actions are taken on the issue per the constitution, the controversy between various factions of the society will continue and may lead to a serious constitutional crisis.
2.2 Usage of Ethiopian Flag that Have a National Emblem at the Center
One of the controversial issues in Ethiopian politics is Ethiopian flag. As surfaced during the discussion on draft constitution in early 1990s, Ethiopian flag sends different signals to different groups of peoples in Ethiopia and there is no consensus on what it symbolizes. For some, it is considered as a symbol of victory, freedom, and equality but for others it is considered as a symbol of conquest, suppressions, and inequality (https://www.youtube.com/watch?v=RWfMqayTGAU).
To resolve the flag controversy for once and for all, Article 3 of the constitution stipulated to add a national emblem that shall reflect the hope of the Nations, Nationalities, Peoples as well as religious communities of Ethiopia to live together in equality and unity at the center of Ethiopia flag. Even though Ethiopia issued Flag Proclamation No. 654/2009 (https://chilot.me/wp-content/uploads/2011/01/flag.pdf ) on August 28, 2009 that requires the flag to have a blue circular emblem in the center with straight and equal lines of yellow that come from all directions and join each other and form a star and yellow rays radiating from the points where the straight and equal lines cross each other, it failed to fully implement this proclamation. Article 23 (1) of the Proclamation 654/2009 prohibits using the flag without its emblem and Article 24 (2) orders whosoever uses the flag without the emblem to be punished with a fine of up to 5,000 Birr or rigorous imprisonment up to one year and six months. However, the Federal Government of Ethiopia failed to implement this proclamation and Article 3 of the constitution.
The failure of Ethiopian Government to implement Article 3 of the constitution made the controversy on flag issue to continue. The conflict between the supporters of Patriot Ginbot 7 (PG7) and Oromo Liberation Front (OLF) in Addis Ababa in September 2018 which led to the Burayou killings and displacements was the result of this failure.
According to Article 75 of the constitution, Ethiopia shall have one Deputy Prime Minister. Articles 75 and 76 of the constitution address the Deputy Prime Minister in a singular form. However, following the death of the late Prime Minister MelesZenawi on August 20, 2012, because of lack of confidence in Prime Minister HailemariamDessalegn and because of competition for political power among the four EPRDF member organizations, the positions of two additional deputy prime ministers were created and DemekeMekonnen, Dr. DebretsionGebremichael, and MuktarKedir /Aster Mamo became deputy prime ministers from November 29, 2012 to November 6, 2016.
Even though the constitution is clear on the number of Deputy Prime Minister position and the ruling party EPRDF and government know that, they decided to intentionally ignore the provision of the constitution to protect the government from failing because of the absence of Prime Minister MelesZenawi. At the end of 2016, after EPRDF and the government felt that Prime Minister HailemariamDessalegn can do his jobs without further propping, they decided to follow the provision of the constitution and to have only one Deputy Prime Minister. The creation of two additional deputy prime ministers positions was done in violation of the constitution based on the consideration that running the government with only one Deputy Prime Minister was politically infeasible.
Now, it is a public secrete that the relationship between the Federal Government of Ethiopia and the Government of the State of Tigray is not healthy. The federal Government accuses the Government of the State of Tigray as non-cooperative (https://www.youtube.com/watch?v=IH6OQJuZyp8 and https://www.youtube.com/watch?v=qAJfpyB-vC4) and the Government of the State of Tigray say that it has been singled out and targeted by the Federal Government (https://www.youtube.com/watch?v=f66cOvQxtsk ; https://www.youtube.com/watch?v=hDcVaGuRKYA ). The statement issued by the Central Committee of TPLF in connection to 44th anniversary of the founding of TPLF also reflects this reality (https://www.youtube.com/watch?v=A4sXN9mf3UI ). The question is what can the Federal Government constitutionally do if the member state of FDRE refuses to cooperate with the Federal Government?
Powers and functions of the Federal Government are listed under article 51 of the constitution. According to Article 52 (1) of the constitution, all powers not expressly given to the Federal Government are reserved to the States. Therefore, the residual power vested in the States and the Federal Government has no other power beyond what are listed in the constitution.
Article 51 (14) of the constitution authorizes the Federal Government to deploy the federal defense forces within the State but only to arrest a deteriorating security situation within the requesting State when its authorities are unable to control it and only at the request of a concerned state. In the cases where there is no deteriorating security situation and there is no request from the concerned state, the Federal government is not allowed to dispatch its defense forces to force the state to do or not to do something.
It is highly probable that the tense relationship between the Government of the state of Tigray and the Federal Government may lead to a constitutional crisis. According to the Federal Attorney General’s January 2, 2019 press release, the State of Tigray refused to cooperate with the federal government and to hand over individuals charged for violation of human rights, abuse of powers, and corruptions (https://ethsat.com/2019/01/ethiopia-tigray-regional-govt-refuses-to-handover-fugitive-former-spy-chief/ ). Asked about this issue by the members the HOPR, Prime Minister Dr. Abiy preferred to convince the HOPR and the Ethiopian people that theses accused individuals are considered in self-imposed prison rather than telling the actions that the Federal Government could take.
In addition the State of Tigray announced that it will not recognize the Administrative Boundaries and Identity Issues Commission Establishment Proclamation and will not cooperate in the implementation of the proclamation. The constitution is not clear on what legal recourse the federal government has when the member state of the federation refuses to cooperate with the federal government.
Conclusion:As I discussed in my previous articles available at https://kichuu.com/making-ethiopian-constitution/ and http://www.aigaforum.com/article2018/Ethiopia-and-the-Federal-System.htm, the constitution of the FDRE is in peril.Even though the argument is not valid, some groups are arguing that they were not represented in the drafting and approval of the constitution and they do not have the obligation to respect the constitution. We arealso hearing the argument which says the constitution was written by the previous government for its own interest and must be changed. This group also argues that the constitution shouldn’t be written by the government; rather the government must be established by the constitution. This is the chicken or the egg order argument. In short, the constitution of the FDRE is considered by some as an infected or rotten constitution that need to be discarded or changed and by others as a necessary and defendable instrument to hold the country together. While the struggle between those who want to change the constitution and those who want to maintain it is going on, constitutional crises are taking place one after the other to the point of making the constitution invalid in de facto.