The regional constitutional acknowledgement of ethnic minorities

As mentioned in the introduction, the Federal Constitution endows the regions with the power to adopt their own constitutions. Article 50(5) of the Federal Constitution states that each regional council (in effect the regional parliament) has the power to draft, adopt and amend the regional state constitution. Yet, the supremacy of the Federal Constitution, as proclaimed in its article 9(1), implies that the regional constitutions have to comply with the provisions of the Federal Constitution. The power of the regions to enact a constitution is also bestowed by article 52(2)(b). On the basis of these provisions, all the regions have adopted their own constitutions. The Oromia, Tigray, Southern Region, Somali, Harar and Amhara Constitutions were adopted in 1995; the Benishangul-Gumuz and Gambella Constitutions were adopted in 1996; and Afar Region adopted its constitution in 1998. These constitutions were simply enacted by the respective regional councils and were therefore not the result of a wide-ranging drafting and deliberation process.Footnote ¹³

From 2001 onwards, all the regional constitutions were significantly revised. The four core regions of the federation adopted their revised constitutions around the same time at the end of 2001; Oromia Region adopted its revised constitution on 27 October 2001; Amhara Region on 5 November 2001; Southern Region on 12 November 2001; and Tigray Region on 15 November 2001. This was followed by Afar Region, which adopted its revised constitution on 5 July 2002, and Benishangul-Gumuz and Gambella Regions, which adopted their revised constitutions on 2 and 17 December 2002 respectively. Somali Region also adopted a revised constitution in 2002. Harar Region was the last to revise its regional constitution in 2004. All the revised regional constitutions were once again adopted by the regional councils and the drafting was carried out either by standing committees of the council or by committees appointed by the regional chief executive (the regional president).Footnote ¹⁴ Since all the regional councils were controlled by EPRDF constituent or affiliated parties at the time the revised constitutions were adopted, it is fair to argue that the revised constitutions primarily reflect the objectives of the ruling party. This argument is supported by the preambles of the constitutions, which point out similar rationales for the constitutional revisions. An understanding of how the EPRDF controls the regional councils requires some explanation about the political context and practice in Ethiopia then and now.

The EPRDF is composed of four parties: the Tigray People's Liberation Front (the front's founder), the Amhara National Democratic Movement, the Oromo People's Democratic Organization and the South Ethiopian Peoples Democratic Movement. Through these four parties, the EPRDF controls 499 of the 547 seats in the House of Peoples' Representatives (the first chamber of the Federal Parliament). The EPRDF further controls 46 seats through its affiliated parties. These parties do not belong to the EPRDF coalition, but have been established under the impetus of the EPRDF and are under its supervision. This near monopolization of Federal Parliament seats, coupled with the parliamentary system of government, also results in EPRDF control of the federal executive, which is supported by and accountable to the House. The same picture arises at regional level. The four EPRDF constituent parties hold all the seats of the regional parliaments and thus control the executive in four regions (the Tigray, Amhara, Oromia and Southern Regions). The same situation characterizes the remaining five regions, where EPRDF affiliated parties hold all the regional council seats (except for one seat in the Benishangul-Gumuz Regional Council), leading to their monopolization of the regional executives. Yet, the fact that the same party controls the federal as well as regional governments does not necessarily affect regional autonomy. However, what does impact negatively upon regional autonomy in Ethiopia is the centralized decision-making process of the ruling party. This implies that the party's programme and action plans enacted by its central organs are adopted by its constituent and affiliated parties and consequently serve as a basis for the federal and regional policies and plans. The regional states can thus administer themselves, but have to do so within the framework established by the EPRDF.Footnote ¹⁵ The framework set by the ruling party also determined the content of the regional constitutions and offers an explanation as to why the regions have adopted a similar constitutional approach towards the ethnic pluralism characterizing their respective polities, as explained below.

Even though all regions have ethnically diverse populations, the constitutions of Oromia and Somali Regions do not mention specific ethnic groups other than the titular groups (ie the Oromo and Somali). This does not mean that these regional constitutions do not recognize the ethnic diversity of their populations; both constitutions acknowledge the presence of other ethnic groups,Footnote ¹⁶ but they do not single out a specific one or number of them. With this, both constitutions reflect the idea that the regions have been created as a forum to protect and fulfil the right to self-determination of the Oromo and Somali ethnic groups only. In other words, the Oromo and Somali constitute the constitutionally empowered majority in the Oromia and Somali Regions respectively. This idea is expressed in provisions such as articles 8 and 39 of the Oromia Constitution, which respectively grant sovereign power in the region and the right to self-determination to the “people of the Oromo Nation”.Footnote ¹⁷ The constitutions of the Afar, Tigray and Amhara Regions on the other hand do recognize, besides the dominant ethnic groups, other groups that have been empowered by the establishment of the region. The Afar Constitution, in its article 43(2), grants “the indigenous Argoba People” the right to have their own special woreda [district]. The preamble of the Tigray Constitution starts with the phrase “[w]e, the Peoples of the Tigray region”, rather than “[w]e, the Tigray people”. This trend continues in article 8 of the Tigray Constitution, which stipulates that all powers of the region reside in the “peoples” of the region. Accordingly, article 39 of the constitution accords the right to self-determination not only to the Tigray nation, but also to the Irob and Kunama ethnic groups, which are thus as equally empowered as the Tigray people. The Amhara Region Constitution likewise talks about the “peoples of the Amhara Region” and, in addition to the Amhara, the constitution explicitly refers to the Agew Himra, Awi and Oromo ethnic groups. Although the Harari ethnic group constitutes a small numerical minority in Harar Region, the regional nomenclature reflects its empowerment, which is clearly expressed in the regional constitution. Yet, the Harar Constitution also explicitly singles out the Oromo among the other nations, nationalities and peoples living in the region. The constitutions of Benishangul-Gumuz and Gambella Regions both designate five ethnic groups as “indigenous” (Benishangul-Gumuz) or “founder members” (Gambella) of the region. These groups are the Berta, Gumuz, Shinasha, Mao and Komo in Benishangul-Gumuz, and the Anywaa, Nuer, Majangir, Upo and Komo in Gambella.Footnote ¹⁸ Finally, the Southern Region Constitution does not list specific ethnic groups but, as this article will demonstrate below, no fewer than 56 ethnic groups are considered to have the Southern Region as “their” region.

It can be inferred that the constitutions of seven of the nine regional states acknowledge that the respective region has been established for two or more ethnic groups or, in other words, that the region constitutes the territorial framework within which the designated ethnic groups can exercise the different components of their right to self-determination. Yet, what is also notable is that even those regions that do empower different ethnic groups do not give equal attention to all ethnic groups residing within the regional boundaries. For instance, although persons with an Amhara identity constitute more than 20 per cent of Benishangul-Gumuz residents, the Amhara are not mentioned in the regional constitution. This can be explained by the ethnic-territorial approach characterizing Ethiopian federalism.Footnote ¹⁹ The ethnic-territorial approach finds its basis in the definition of “nations, nationalities and peoples” or ethnic group in article 39(5) of the Federal Constitution, which identifies inhabiting “an identifiable, predominantly contiguous territory” as one of its constituent elements. Hence, the Ethiopian Constitution assumes that all Ethiopian ethnic groups have their place of origin in a certain area of the country, which is located in one of the nine regions. In other words, it assumes an overlap between ethnic boundaries and regional boundaries, which justifies the designation of Ethiopian federalism as “ethnic” federalism. The point is therefore that the ethnic groups explicitly mentioned and empowered by the regional constitutions are the “indigenous” groups of the region, ie the groups that have their place of origin in that region. The implicit or explicit differentiation between indigenous and non-indigenous groups has implications for the rights of the two categories of groups, as will be outlined in the next section.

Differentiation between indigenous and non-indigenous ethnic minorities

Evidently, the residents of Ethiopia's regions are not exclusively composed of members of the so-called indigenous groups or minorities; people belonging to “non-indigenous” groups live in all the regions. As Ethiopian citizens, these people enjoy all individual rights protected by the Federal Constitution and the nine regional constitutions. Although the human rights provisions of the Ethiopian constitutions are most notable for their inclusion of group rights (the most striking group right being the right to self-determination), individual rights form a major part of both the federal and regional constitutions. Individual rights particularly pertinent for (members of) minorities are the right to equality,Footnote ²⁰ freedom of association,Footnote ²¹ freedom of movement,Footnote ²² and the right to vote and to be elected,Footnote ²³ which have been almost entirely included in the regional constitutions as well. Yet, the non-inclusion of some federally protected rights in the regional constitutions does not really matter, since the Federal Constitution, and its chapter on human rights, is equally binding for all regional government institutions.Footnote ²⁴

Hence, members of indigenous and non-indigenous minorities are entitled to equal protection of individual rights in the regions. The question is rather whether non-indigenous minorities can also claim group rights at regional level. A brief survey of the regional constitutions reveals that the components of the multi-faceted group right of self-determination are either impliedly or expressly limited to indigenous internal minorities. Article 8 of the 2001 Oromia Constitution grants sovereign power exclusively to the “people of the Oromo Nation” and article 39 of this constitution reserves the right to self-determination to the “people of the Oromo nation”. This suggests that the right to exercise self-determination, as provided by the regional constitution, is the preserve of the “Oromo people”, excluding large numbers of non-indigenous minorities from the constitutional grant of the right to self-determination. Similar provisions are included in articles 9(1) and 39 of the 2002 Somali Constitution. The Tigray Constitution limits the right to self-determination to the indigenous groups of the Tigray, Irob and Kunama.Footnote ²⁵ An identical approach has been adopted by the Amhara Constitution.Footnote ²⁶ The Benishangul-Gumuz Constitution includes the right to self-determination under the heading of “Rights of the Indigenous Nations [sic] Nationalities of Benishangul-Gumuz”.Footnote ²⁷ Although the non-indigenous minorities cannot claim group rights on the basis of regional constitutions, it could be argued that, due to the supremacy of the Federal Constitution, they can claim these rights on the basis of article 39 of the Federal Constitution. This article grants the right to self-determination to all nations, nationalities and peoples of Ethiopia without differentiating between indigenous and non-indigenous groups. Yet, although article 39 entitles non-indigenous minorities to claim the right to self-determination, no constitutional mechanisms have been designed to guarantee the fulfilment of this right. This is completely different for the indigenous minorities, which have been explicitly acknowledged and endowed with the right to self-determination by the regional constitutions. The regional constitutions allot the indigenous minority groups several mechanisms for the fulfilment of the different components of the right to self-determination, the major one of which is, as already noted in the introduction, the creation of sub-regional or local government administrations.

The next section discusses the status, institutional structure and powers of the ethnic-based local government administrations that have been designed by the different regional constitutions.

Establishing ethnic-based local governments

The Federal Constitution authorizes the regions to enact constitutions but has in general very little to say about their content; the constitution thus grants considerable “constitutional space” to the regions.Footnote ²⁸ Concerning local government, the Federal Constitution merely stipulates that the regional states shall establish whatever (regional) state governments they find necessary at state and other administrative levels.Footnote ²⁹ The Federal Constitution therefore leaves wide discretionary powers to the regions, which are only limited by the requirement that “adequate power shall be given to the lowest units of government”,Footnote ³⁰ precluding the establishment of a centralized regional administrative structure. However, the analysis of regional constitutional and other legal provisions on local government demonstrates that the regions have only sparsely used their discretionary power, giving rise to similar designs. The dominant party structure, as explained above, seems to have inhibited regional creativity in this regard.

Since the Oromia and Somali Constitutions do not recognize any minority group, the local government administrations provided by these constitutions do not serve as a territorial forum for ethnic minority protection. At first sight, the Afar Constitution is similar to the Oromia and Somali Constitutions in the way it deals with ethnic diversity. Article 8 of the Afar Constitution, for example, stipulates that the Afar people shall be the ultimate authority in the region. In the same way, article 37 grants a right to self-determination, not to the peoples residing in the region but to the Afar people. Nonetheless, as mentioned above, article 43(2) of the Afar Constitution recognizes the right of the Argoba people to have their own “special woreda” in the region. While, as discussed later, the “special woreda” is designed by the Southern Region Constitution as an ethnic-based sub-regional local government administration, the Afar Constitution does not include such an administrative level. In addition to the regional level, the Afar Constitution provides for the administrative levels of the woreda, the city and the kebele [ward - the lowest formal level of government administration].Footnote ³¹ Although the (ordinary) woreda administration does offer opportunities for self-rule (a woreda's powers include drawing up and approving its own socio-economic development plan and approving its own budget), its powers do not serve the objective of protecting ethnic identity-related matters such as language and culture. Of course, since the Afar Constitution allows the Regional Parliament (the regional council) to establish other administrative levels,Footnote ³² it cannot be excluded that the regional council would adopt a law establishing an Argoba Special Woreda. Such a development has occurred in Amhara Region where the Regional Parliament enacted a law establishing a specific “nationality woreda” for the Argoba minority, even though the administrative level of a nationality woreda is not provided by the Amhara Constitution.Footnote ³³ The Argoba Nationality Woreda has pertinent powers enabling the Argoba to protect identity-related interests, such as the power to determine its own working language and protect the Argoba history.Footnote ³⁴

Although the Tigray Constitution grants the right to self-determination to the Irob and Kunama minorities, it does not endow them with any specific ethnic-based local administration. In practice however, the Irob do administer their own woreda. Yet, as is the case in Afar Region, although woreda in Tigray Region offer some opportunities for self-rule, identity-related issues do not resort to the competence of these local government levels. The Amhara Constitution goes much further in protecting its ethnic minorities. This is because it offers the three recognized minority groups of Agew Himra, Awi and Oromo an important instrument with which to fulfil their right to self-determination by providing for the establishment of the administrative level of the “Nationality Administration” for each of these three groups.Footnote ³⁵ The Nationality Administration is a local government administration hierarchically directly subordinate to the regional level. It consists of the following institutions: the Nationality Council (the legislature, as it were), the Nationality Administrative Council (the executive) and the judicial body of the Nationality Administration.Footnote ³⁶ In addition to planning and budgeting powers, the Nationality Council has powers enabling the respective ethnic group to protect its language and culture. For instance, the Nationality Council has the power to determine the working language of the Nationality Administration.Footnote ³⁷ It furthermore has the related power to “[e]nsure the protection of the rights which the nationality has with respect to speak and write in its own tongue, develop, preserve, express, enhance and promote its own language as well as maintain and extend due care to its own history”.Footnote ³⁸

Whereas the Harar Constitution recognizes two indigenous ethnic groups (the Harari and Oromo) it does not establish ethnic-based local government administrations. Both ethnic groups are expected to exercise their right to self-determination through the regional government institutions, since the regional constitution contains elements of “consociationalism” or power-sharing, a concept which this article discusses below. The approach pursued by the Amhara Constitution (establishing ethnic-based local governments to protect sub-national ethnic minorities) has also been adopted by the Benishangul-Gumuz, Gambella and Southern Region Constitutions. The Benishangul-Gumuz Constitution provides for the establishment of the sub-regional, local administrative level of the “Administration of Nationalities”. Although the constitution is not clear on this point, a later regional law has determined that such an Administration of Nationalities is reserved for the Berta, Gumuz, Shinasha, Mao and Komo ethnic groups, ie the groups that are indigenous to the region.Footnote ³⁹ Similar to the position in Amhara Region, the Administration of Nationalities in Benishangul-Gumuz has the following institutional structure: the Council of Nationalities (the legislature), the Nationalities Administration Council (the executive) and the judicial organ. The powers of the Benishangul-Gumuz Nationality Council are also identical to those of the Amhara Nationality Council, which means that it offers opportunities for self-rule and identity protection to the respective ethnic groups. In this regard, it has to be mentioned that, until now, no Administration of Nationalities has been established in Benishangul-Gumuz Region. The present local government organization is therefore still based on the previous constitution of 1996, which means that the region currently has three zones (Assosa, Metekel and Kemashi) and one special woreda (for the Mao and Komo people).Footnote ⁴⁰

In Gambella Region on the other hand, the nationality zone administrations provided for by the constitution have been established. Although the constitution lists five indigenous groups, it simultaneously reserves the right to establish a nationality zone for the Anywaa, Nuer and Majangir ethnic groups.Footnote ⁴¹ The Upo and Komo, although equally indigenous, have not been given the right to establish a nationality zone. This is probably due to their extremely small population size (each group comprising a few hundred people), making the prospect of a viable nationality zone for these groups unrealistic. Nevertheless, the constitution does enable the Upo and Komo minorities to establish their own kebele.Footnote ⁴² The structure and powers of the nationality zones in Gambella are almost identical to those of the Nationality Administration and Administration of Nationalities in Amhara and Benishangul-Gumuz Regions respectively.

The Southern Region Constitution does not list the region's indigenous groups, but such a list is available on the regional government's website.Footnote ⁴³ This list demonstrates that the region has no fewer than 56 indigenous ethnic groups and, according to article 39 of the Southern Region Constitution, they all have an unconditional right to self-determination. Similar to the Amhara, Benishangul-Gumuz and Gambella Constitutions, the Southern Region Constitution primarily uses the establishment of sub-regional ethnic-based administrations or local governments as a mechanism to accommodate the region's extreme diversity. In this regard, article 45(2) of the Southern Region Constitution stipulates that the nations, nationalities and peoples in the region shall have their own zonal or special woreda administration. The zones and special woreda have the same constitutional status, and their organizational structure and powers are very similar to those of the ethnic-based local governments in Amhara, Benishangul-Gumuz and Gambella Regions.Footnote ⁴⁴ A zonal / special woreda council has the power to determine the working language of the zone / special woreda and it protects “the right of the Nationalities to speak, write and develop their languages and preserve their history”.Footnote ⁴⁵ It also has the power to approve its own budget.Footnote ⁴⁶ The powers of the zones / special woreda in Southern Region are even somewhat stronger than these of the comparable local government administrations in Amhara, Benishangul-Gumuz and Gambella Regions. Unique to Southern Region is that the regional constitution offers the zonal / special woreda councils law-making powers. Article 81(3c) of the Southern Region Constitution stipulates that: “[w]ithout prejudice to the powers vested in the State Council in this Constitution, it [the zonal / special woreda council] shall issue laws on matters uncovered and that are consistent with the State and Federal laws”. It is not clarified which matters are envisioned here, but what is clear is that this is not an exclusive residual legislative power, but a concurrent one. Indeed, the constitution adds that the laws issued by a zonal / special woreda council have to be consistent with the regional state and federal laws.Footnote ⁴⁷ In other words, the zones can adopt a law in an area which lies within the competence of the regions but, as soon as a contrary regional law is adopted, the latter will prevail. Until recently, Southern Region had 13 zones (Gurage, Hadiya, Kembata Timbaro, Sidama, Gedeo, Debub Omo, Kaffa, Sheka, Bench Majji, Silte, Wolayita, Gamo-Gofa and Dawro) and eight special woreda (Yem, Derashe, Amaro, Burji, Konso, Halaba, Konta and Basketo). However, in early 2011, the Derashe, Amaro, Burji and Konso special woreda were merged into the new Segen Zone. The constitutional status of this new zone is not clear to the author. Obviously, the regional constitution provides for the zone's administrative level, but does not create a hierarchy between the zones and special woreda; constitutionally both administrative levels have the same status. It could therefore perhaps be concluded that the establishment of the Segen Zone has relegated the four special woreda to ordinary woreda status, with the concomitant reduced autonomy for the concerned ethnic groups. This issue requires careful investigation, since the establishment of the Segen Zone could be a foreboding of further administrative reforms in Southern Region, an issue which is discussed below.

The next section assesses the capacity of the ethnic-based local governments to protect minority rights and interests.

Opportunities

As can be observed from the discussion so far, all regions (except the Harar Region) that have constitutionally acknowledged the indigenous character of ethnic groups other than the titular ones, have established (or at least provide for the establishment of) ethnic-based local governments. These local governments are designed to enable the (indigenous) ethnic minorities to exercise the three components of the right to self-determination: language rights and cultural rights; representation and participation in government institutions and activities; and the right to territorial autonomy. These three components (or rights clusters) are used here as a yardstick for assessing the capacity of the ethnic-based local governments in ethnic minority protection.

Challenges

Although the preceding section has indicated the opportunities offered by the mechanism of establishing ethnic-based local governments for the fulfilment of the rights of sub-national ethnic minorities, this mechanism has substantial limitations as well.

The first limitation relates to the degree of autonomy enjoyed by the ethnic-based local governments in the exercise of their powers. The idea is that, through these local governments, the concerned ethnic minorities can exercise the self-rule component of the right to self-determination. Determining social and economic policies and plans for the locality seems to be an important element of self-rule, but the regional constitutions lack further specification regarding the areas that can be covered by these social and economic plans. The constitutions are however clear that the local policies and plans must be in line with the regional policies and plans. The residual autonomy of the local governments in this area will thus be determined by the amount of detail included in the regional documents. Although the chief administrator and the Administrative Council (the executive at local level) need to be supported by the political majority in the local council (reflecting a parliamentary system of government that characterizes all administrative levels in Ethiopia) and are accountable to it, the regional constitutions similarly provide for the local executive to be accountable to the regional Executive Council and regional president.Footnote ⁶³ Yet, the scope of this upward accountability is far from clear, as the regional constitutions limit themselves to defining the role of the regional president in this regard as one of directing, co-ordinating and controlling. The question arises whether this gives the regional president the power to dismiss a local chief administrator, or is this power reserved for the local council? The former situation is likely to fuel a process of upward accountability to the detriment of accountability to the local constituency, therefore reducing local self-administration. This risk is compounded by the present political context in Ethiopia, characterized by a dominant party (EPRDF) controlling all levels of administration in all regions of the country.Footnote ⁶⁴ The direct or indirect EPRDF control over the federal and regional governments (as discussed above) extends to all levels of local government, which includes the ethnic-based local governments discussed in this article. This implies that the chief administrators of the ethnic-based local governments are accountable to the regional presidents, who are in most cases their party chiefs. Such a state of affairs (and the inherent danger it holds for local autonomy) is complemented by the EPRDF's centralized organizational structure and decision-making process, which constitute a further impediment to regional and local autonomy.Footnote ⁶⁵

Although the establishment of local governments does endow minority groups with important powers to protect matters related to their identity, it does not achieve comprehensive protection of identity matters due to the far from complete overlap between ethnic and territorial boundaries. Creating ethnic-based local governments is an inclusive strategy to protect sub-national minorities in case there is a perfect overlap between ethnic and territorial boundaries. However, as noted in the introduction, such an overlap can never be achieved without unconstitutional means, such as forced resettlement or restrictions on freedom of movement or internal migration. Consequently, not only will there be ethnic minorities in every ethnic-based local government, but the empowered minority or group itself will not even reside exclusively within the boundaries of its own local government administration. Ethiopia is definitely not an exception to this pattern, as the following examples demonstrate.Footnote ⁶⁶ In Amhara Region, the Waag Himra and Awi Nationality Administrations have been established for the Agew Himra and Agew Awi ethnic groups, respectively. Yet, both Nationality Administrations are far from ethnically homogeneous: of the 426,213 residents of Waag Himra, the Agew Himra number only 225,564, whereas the Amhara constitute 193,719; a similar picture arises in Awi where the Agew Awi number 587,943 and the number of persons with an Amhara identity is 377,866. Although the Oromo constitute the overwhelming majority in the Oromia Nationality Administration (393,584 out of a total of 457,278 residents), the Amhara, numbering 57,330, constitute a significant minority. Furthermore, many Oromo live in other areas of Amhara Region. Although the Nuer Nationality Zone in Gambella Region is fairly homogeneous, this is not the case for the remaining two nationality zones in the region. Of a total population of 99,556 in the Anywaa Nationality Zone, residents with an Anywaa ethnic identity number merely 53,372. In the Majangir Zone, the Majangir are in fact a small numerical minority: they number 9,985 out of a total zonal population of 59,248. Similar patterns of ethnically diverse ethnic-based local governments and ethnic groups scattered over the territory characterize Southern Region. This provokes the critical question as to what to do with the residual sub-national minorities, ie the minorities that are not encapsulated in “their” ethnic-based local government. How can the rights of these groups be protected? The next section discusses a number of alternative, complementary mechanisms replicating a more inclusive approach towards minority protection. Admittedly, the workability of institutional mechanisms is strongly context-specific as it is determined by political, cultural and economic factors which necessitate serious caution while recommending them. Yet, the devices discussed below can already be observed, although sometimes only in their infancy, in the Ethiopian legal framework, which justifies their assessment in this article.

Creating new sub-regional administrations and adjusting territorial boundaries

Indeed, the establishment of new ethnic-based local governments might be an adequate response to the demands of certain ethnic groups. The Southern Region Constitution is clear in this regard: all nations, nationalities and peoples of the region are entitled to the establishment of their own zone or special woreda. This ethno-territorial mechanism has been applied in several instances so that new zones or special woreda have effectively been established in Southern Region. In 2000, the Simien (north) Omo Zone was split into three zones (Wolayita, Dawro and Gamo-Gofa) and two special woreda (Basketo and Konta).Footnote ⁶⁷ Similar requests for a separate territorial administration have been made by the Gofa and the Kembata (they claimed a zone separate from the Gamo-Gofa and Kembata Timbaro Zones respectively) and the Timbaro who claimed a separate special woreda.Footnote ⁶⁸ Some ethnic minorities have also demanded a readjustment of the existing administrative borders in order to join their ethnic kin in a new territorial circumscription dominated by them, reflecting a form of sub-national irredentism as it were. Although the establishment of a new local government administration can be an effective response to minority demands, the same comment as in the previous section applies: it does not offer an inclusive solution to the minority issue. New majority-minority relationships will arise within the boundaries of the newly established local governments. The incessant application of the territorial approach might ultimately lead to administratively unviable territorial fragmentation as well as to endless conflict-prone boundary readjustments. Indeed, in Southern Region this concern is clearly shared by the regional government, which as of late has been less than enthusiastic about establishing new ethnic-based local governments. It rather focuses on bringing the different peoples of Southern Region together, not only in hearts and in minds, but also politicallyFootnote ⁶⁹ as well as administratively (see the recent establishment of the Segen Zone, mentioned above). Thinking outside the “territorial box” when recommending and designing constitutional and legal devices for ethnic minority protection is therefore mandatory.

Granting non-territorial autonomy

The concept of non-territorial autonomy is an adequate device to enable ethnic minorities that are living scattered over a territory to exercise their language and cultural rights. The concept is based on a separation between autonomy and territory, so that autonomy is given to a certain ethnic group rather than linked to a particular territory. In the case of Ethiopia, this could mean that sub-national minorities are given the right to have their own non-territorial council. This non-territorial council, composed exclusively of members of the concerned ethnic group, would be competent for identity-related matters such as culture, language and education, and its authority would extend to all members of the concerned group regardless of where they live in the region. Obviously this article does not advocate replacing the territorial administration with a non-territorial one. Several policy matters such as agriculture, land and infrastructure clearly have a territorial component and will continue to be administered by territorial administrations or local governments. Institutionally, such non-territorial councils could be established separately, or the existing territorial councils could exercise the non-territorial competencies.

The first option would be particularly interesting for ethnic minorities that do not have their own local government, such as several ethnic minorities in Southern Region. These minorities could organize non-territorial councils, which would enable them to protect their language and culture without having to resort to the establishment of a separate zone or special woreda.

The second option would mean that the councils of the existing zones, special woreda, nationality zones or nationality administrations would have extra-territorial powers. For instance, the Council of the Oromia Nationality Administration would not only be competent for its own territory, but would have extra-territorial powers regarding the identity-related matters of the Oromo people in Amhara Region.

If the councils of the existing local governments exercise non-territorial powers, two measures are mandatory. First, when the council decides on non-territorial matters, only members belonging to the concerned ethnic group should have voting rights. Secondly, when deciding non-territorial matters, the council should also include representatives of the respective group from outside the sub-regional or local government administration.

The legislature of Benishangul-Gumuz Region has also acknowledged that the introduction of non-territorial autonomy can be very useful where ethnic groups are scattered over a territory. As noted above, although the Benishangul-Gumuz Constitution provides for the establishment of ethnic-based Nationality Administrations, no such local government had been established at the time of writing this article. As explained by the former president of the region in an interview with the author, this has much to do with the territorial dispersion of some ethnic groups, such as the Gumuz.Footnote ⁷⁰ Regional Proclamation No 73/2008 has considered this reality and contains some remarkable provisions that go towards designing mechanisms of non-territorial autonomy in the region.Footnote ⁷¹ Article 3(4) of the proclamation stipulates: “[t]he hierarchy of the Administration of the Council [the Nationality Administration] shall have its own boundary limits to perform regular governmental functions and administrative functions; however, it is established bounder less [sic] regarding the protection and preservation of the rights and privileges of nationality cases under Article 39 of the constitution.” Hence, the proclamation differentiates between two categories of competencies: “regular governmental and administrative functions” and “nationality cases”. According to article 2(11) of the proclamation, nationality cases are “cases that include the rights of the nation and the nationalities and the rights to speak and write, to develop, preserve, express, promote and expand their historical heritage…”. Consequently, what the law says is that the Nationality Administration's remit is “boundless” regarding the protection and preservation of the language and cultural rights of the titular ethnic group. It can therefore be contended that this proclamation has introduced the concept of non-territorial autonomy in Benishangul-Gumuz Region. This Benishangul-Gumuz regional law provides a good illustration of how regional autonomy can be used to design administrative and institutional mechanisms that reflect regional realities. Regional states are well advised to continue along this path rather than follow one-size-fits-all approaches that might actually not fit all regional realities.

Power sharing

This mechanism has to complement the previous one. Although the mechanism of non-territorial autonomy appears to hold significant promise for the protection of minorities' cultural and language rights, it cannot be ignored that many issues remain territorial and are therefore decided by the sub-regional local administrations. Hence, in order to enable minority groups who do not have a separate local government or who are living outside their “mother” local government to protect their interests effectively, it is imperative to guarantee their representation and participation in the local government institutions. Different devices can be designed in order to achieve this objective.

The concept of “consociationalism”, a model for state building in a plural society that is mainly associated with the Dutch scholar Arend Lijphart, offers valuable guidelines in this regard. Consociationalism comprises four components: grand coalition, mutual veto, proportionality and segmental autonomy.Footnote ⁷² The last component, segmental autonomy, ie ethnic autonomy in the case of ethnically plural societies, is already covered by the previous two sections dealing with territorial and non-territorial autonomy. Grand coalition in an ethnically plural society means that all ethnic groups jointly administer the territory. In the case of Ethiopia, this could entail the councils of the ethnic-based local governments representing the diverse ethnic groups living in the respective administrations. This objective could be achieved in different ways. One is through the organization of free elections. This relates to the “proportionality” component of consociationalism, which implies that ethnic groups should be represented in political bodies proportionate to their number.

However proportionality might not always be to the liking of the ethnic group that is empowered by the establishment of a certain local government. In the Majangir Zone for instance, it would entail that the Majangir are completely outnumbered and outvoted in their own zonal council. The fear of being outnumbered and thus losing control over regional political institutions also explains the differentiation made, both legally and practically, between indigenous and non-indigenous ethnic groups in the Gambella and Benishangul-Gumuz Regions. The constitutions of both regions, as mentioned above, explicitly mention five ethnic groups as indigenous, relegating all other groups to non-indigenous status. Moreover, the regional political practice dominated by EPRDF-affiliated parties creates impediments to the political participation of non-indigenous groups, leading to their disproportionate (up to the extent of complete lack of) representation in regional political institutions.Footnote ⁷³ This state of affairs can be illustrated by the composition of the Gambella Regional Council and Executive Council. Although non-indigenous minorities constitute more than 20 per cent of the Gambella regional population, they hold merely 11 of the 156 seats in the Regional Council. Non-indigenous minorities are completely absent from the Executive Council, where the 17 seats are distributed between the Nuer (seven), the Anywaa (six), the Majangir (two) and the Upo and Komo (one seat each).Footnote ⁷⁴ The fear of indigenous minorities being outnumbered in “their” territories, which could be the case given proportional representation, is furthermore particularly strong in the country's urban centres, which are ethnically very diverse and where the indigenous group does not necessarily constitute the majority of the population.Footnote ⁷⁵

Urban centres or cities constitute a separate level of local government that has been recently established across the country. Since local government resides under the authority of the regions, the institutional organization and powers of the cities are detailed in regional proclamations.Footnote ⁷⁶ Cities are administered according to the council-mayor system, where the council is the law and policy making body and where the mayor assumes the executive tasks. The members of the council are directly elected by the city's residents. The mayor, who is elected by the council from among its members,Footnote ⁷⁷ selects the members of the mayor's committee (the city's executive organ) and submits the nominees to the city council for approval. This offers minority groups within an ethnic-based local government, which might constitute a majority of the city population, important guarantees of representation and political participation at city level. Yet, the indigenous groups risk being outvoted in the city's major decisions, which would run contrary to the rationale behind the establishment of ethnic-based territories. Legal mechanisms protecting the rights of “indigenous” or regionally or locally empowered groups should therefore be developed. Such legal mechanisms have been included in the city proclamations that provide indigenous groups with guaranteed representation in the city council.Footnote ⁷⁸ Similar devices, effectively assuring the dominance of the indigenous groups, could also be designed for the political institutions in Gambella and Benishangul-Gumuz Regions and in other ethnic-based local governments. As such, a balance would be struck between the legitimate interests of the indigenous groups not to lose control over “their” region or local government and the interests of the non-indigenous groups not to be politically marginalized in their place of residence.

Yet, on the other hand, it is also possible that, in addition to the empowered ethnic minority, only small communities of other ethnic groups are living in the ethnic-based local administration. In this case, holding elections, using the plurality system applied for the election of councils at all administrative levels,Footnote ⁷⁹ might not lead to these minorities being represented in the local government council. It is therefore mandatory to provide legal guarantees for the representation of such groups. In order to make this mechanism feasible, it will be necessary to make guaranteed representation dependent on a given ethnic minority exceeding a certain numerical threshold. However, the threshold should not apply to ethnic minorities that are indigenous to the local government area, such as the Upo and Komo in Gambella. The guaranteed representation of ethnic minorities in sub-regional councils is currently only provided for the councils of the Nationality Zone in Gambella and the nationality councils in Benishangul-Gumuz.Footnote ⁸⁰

Whereas the organization of free elections and the legal guarantee of minority representation will indeed lead to more inclusive councils, it might still not be sufficient to protect effectively the interests of the ethnic groups that constitute a minority in the council. The majority might permanently outvote them, even when their fundamental interests are at stake. It is therefore recommended that mechanisms of mutual or minority veto are designed, which provide ethnic minorities with the power to veto or block decisions. Obviously, in order not to undermine the regular democratic process, such veto power has to be an extremely qualified one, so that a given minority can only use it in exceptional circumstances. It can be inferred that the concept of consociationalism or power sharing has something interesting to offer to those who strive for a more comprehensive model of ethnic group accommodation and minority protection in Ethiopia.