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The Precarious Future of the Ethiopian Constitution

Published online by Cambridge University Press:  18 July 2013

Gedion T Hessebon
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Abstract

The current Ethiopian Constitution suffers from a severe lack of legitimacy. It lacks legitimacy as a result of a constitution-making process that was not inclusive, as well as the subsequent serious lack of integrity and vitality in the constitutional system. Therefore, if the ruling party, which is also the “author” of the constitution, were to lose its hegemonic position, which is predicated on its control of the security and military apparatus, there is a strong likelihood that there would be calls from significant political forces for a new constitution to be adopted. Such calls should not be heeded. Instead of adopting a new constitution, the current constitution's lack of legitimacy should be remedied by comprehensive constitutional reforms that would still maintain the basic architecture and cornerstones of the current constitution.

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Type
Research Article
Information
Journal of African Law , Volume 57 , Issue 2 , October 2013, pp. 215 - 233
Copyright
Copyright © School of Oriental and African Studies 2013 

INTRODUCTION

In the constitutional history of modern Ethiopia, no constitution has survived its authors. Since 1930, three constitutions have been officially promulgated, in addition to the current constitution. None of these constitutions has survived its authors. The 1931 and the “1955 revised” imperial constitutions did not survive the emperor who was their political sponsor and author.Footnote 1 The same fate awaited the Peoples' Democratic Republic of Ethiopia (PDRE) Constitution.Footnote 2 Naturally, we have to wonder if the Federal Democratic Republic of Ethiopia (FDRE) Constitution is going to face the same end.Footnote 3 More than one and a half decades after the adoption of the FDRE Constitution, it may now be possible to venture a reasonable guess as to whether or not this constitution will survive the Ethiopian Peoples' Revolutionary Democratic Front (EPRDF).Footnote 4

This article will first explore the notion of legitimacy in relation to constitutions. This is followed by the argument that the FDRE Constitution suffers from a severe legitimacy crisis and as a result is unlikely to survive its authors. The third part of the article will argue that the current constitution should survive its authors and be retained even after the end of EPRDF's hegemony. Finally, the author will make some suggestions regarding the constitutional reform that should be undertaken to overcome the FDRE Constitution's legitimacy crisis. If successful, such reforms would enable the FDRE Constitution to serve as the foundation for a truly democratic Ethiopia.

EXPLORING THE NOTION OF LEGITIMACY

The notion of legitimacy can be understood in various ways. The “legitimacy” of a constitution can refer to different things. Fallon makes a distinction between three different senses in which the notion could be used.Footnote 5 He argues that a constitution could have sociological legitimacy, legal legitimacy and moral legitimacy.Footnote 6 Although there could be an overlap and some relationship between these forms of legitimacy, Fallon's analysis of the concept of legitimacy maintains the analytical distinctiveness of the three forms. Legal legitimacy depends on the legality of a norm. A constitution or a constitutional amendment will therefore have legal legitimacy if its adoption conforms with existing and relevant norms of positive law.Footnote 7 This understanding of legitimacy is very much akin to Kay's notion of “legality”, since Kay understands inquiries into the validity of constitutional rules as questions of legality.Footnote 8 The moral legitimacy of constitutions, according to Fallon, is dependent on the constitution being morally defensible and in conformity with the moral criteria that society adopts.Footnote 9 A good example of such conceptions of constitutional legitimacy is the one advocated for by Barnett, who understands constitutional legitimacy to be “a product of procedural assurances that legal commands are not unjust”.Footnote 10 The other way to think of the legitimacy of constitutions is in terms of society's acceptance of the constitution as appropriate and justified. This is what Fallon considers to be sociological legitimacy and it is quite similar to the way Kay uses the term “legitimacy”.Footnote 11 Unless clearly indicated otherwise, the word “legitimacy” is used in this sense, ie referring to sociological legitimacy, throughout this article.

Given that the sociological legitimacy of constitutions is the focus of this article, it is appropriate to elaborate upon this concept and explain how it is employed in this article. One way of doing so is to consider the distinction of sociological legitimacy in the strong and weak sense. A constitutional regime will be considered to have “legitimacy in a strong sense in so far as the relevant public regards it as justified, appropriate or otherwise deserving of support for reasons beyond the fear of sanction or mere hope for personal reward”.Footnote 12 Sociological legitimacy exists in a weak sense when there is acquiescence to the constitutional regime and there is no overt resistance to it.Footnote 13 Kay's conception of legitimacy is more in tune with the strong sense of sociological legitimacy, since he characterizes legitimacy as a fit between rules and the character of a society, or acceptability of the rule in terms of its “suitability to attitudes and beliefs held in the particular society”.Footnote 14 It is this strong sense of legitimacy that is used to analyse the Ethiopian Constitution in this article.

At this juncture, it is worth noting that questions of legitimacy could be even more problematic in divided societies like Ethiopia's,Footnote 15 than in other societies. Divided societies are societies in which “ascriptive ties generate an antagonistic segmentation of society, based on terminal identities with high political salience, sustained over a substantial period of time and a wide variety of issues”.Footnote 16 When such divisions are prevalent within a state, questions regarding the legitimacy of a constitution relating to the process by which it is made and its content will be more controversial than they would otherwise be.Footnote 17 Taking the notion of legitimacy described above, ie legitimacy based on the conformity of a constitution to societal attitudes, beliefs and expectations, it would be very difficult for a constitution to attain such legitimacy in divided societies. A constitution that might be viewed as appropriate and acceptable to one segment of society could be viewed with suspicion and foreboding by those on the other side of the divide. It is very unfortunate when this happens, because constitutions are ideally expected to play a role in the process of forging one political community among the antagonistic groups that form the divided society.Footnote 18 Obviously, for a constitution to be capable of functioning as an instrument for integrating groups within a divided society, it must have robust legitimacy. Otherwise, instead of serving as a means of integration, it will end up accentuating existing divisions within the society.

WANTING IN LEGITIMACY: THE CASE OF THE ETHIOPIAN CONSTITUTION

One can hardly imagine a constitution that has absolute legitimacy at all times. The legitimacy of constitutions, particularly regarding sociological legitimacy, is a matter of degree involving a great deal of relativity. Therefore, it would be imprudent to characterize any constitution as totally lacking legitimacy. Be this as it may, it would be fair to assert that the FDRE Constitution suffers from a severe lack of legitimacy. This article now discusses the reasons for, and manifestations of, this lack of legitimacy.

The process of constitution-making

Given the specific definition of constitutional legitimacy adopted above, it will be apparent that the content of a constitution and the process through which it has been made greatly affect its legitimacy.Footnote 19 Of course, in determining the appropriateness or acceptability of a constitution in a society, it is necessary to take into account its content and the extent to which it fits with the society's beliefs, attitudes and aspirations of the society. Furthermore, the constitution-making process will also be important, since the conformity of the process with society's expectations regarding how a constitution should be made will affect whether or not society will deem the constitution to be acceptable. If the constitution-making process deviates greatly from the manner in which a vast majority of the population believes constitutions should be made, it is highly likely that the objectionable constitution-making process would prompt many people to deem a constitution unacceptable.

The adoption of the FDRE Constitution was accomplished even though significant players objected to the undertaking. One of the principal grounds for objection related to the process by which the new constitution was adopted.Footnote 20 The process was totally dominated by the EPRDF,Footnote 21 which is a coalition of four ethnic based parties considered to be instruments of convenience for the dominant partner in the coalition, the Tigray Peoples' Liberation Front (TPLF).Footnote 22 The dominance of the EPRDF (which is itself dominated by the TPLF) in the constitution-making process was largely based on its military triumph over the Dergue in collaboration with the Eritrean Peoples' Liberation Front.Footnote 23 The EPRDF used its dominance to exclude from the process political parties that had a different constitutional vision from its own. This is demonstrated, among other things, by the fact that, in the entire constitutional process (which lasted roughly four years), no political party participated which advocated a unitary state or a more integrationist, non-ethnic federalism. This is so despite the popularity of these views among a significant number (though probably and arguably a minority) of the population.Footnote 24 Traumatized by the independence of Eritrea and the bloody breakup of Yugoslavia, many people were vehemently opposed to the proposed ethnic federalism and the right of each ethnic group to secession.

The constitution-making process had three stages.Footnote 25 The first was the drafting of the constitution by a commission comprising 29 commissioners.Footnote 26 The second stage in the process was the adoption of the draft by the Council of Representatives of the Transitional Government, which was the legislative house during the transitional process. The final step was the ratification of the constitution by a popularly elected constitutional assembly. The members of the commission were appointed pursuant to a law enacted by the Council of Representatives. The Council of Representatives was itself established through a Transitional CharterFootnote 27 adopted by a peace conference convened by the EPRDF as the victor of a 17 year armed conflict. The EPRDF managed to dictate the entire process, from the convention of the peace conference that adopted the Transitional Charter to the adoption of the final constitution.Footnote 28 This meant that no organized political groups took part in the process to advocate for different views from the one promoted by the EPRDF.Footnote 29 As Vestal notes, “[b]y confusing opposition with rebellion, the Transitional Government of Ethiopia (TGE) prevented key players from participating in deliberations.”Footnote 30 Even though a diversity of views on most constitutional issues might have been entertained in the Constitutional Commission, the situation was quite different in the Council of Representatives and the Constitutional Assembly. For instance, in the Constitutional Assembly, the EPRDF and its allies controlled 85 per cent of the seats and the rest of the seats were filled by an assortment of small ethnic parties and independent candidates.Footnote 31 These parties had fewer than 40 seats in total and many of the independent members of the assembly, with a few notable exceptions, did not in any way represent the pan-Ethiopian nationalist views that existed among some segments of the population. Therefore, those who opposed ethnic federalism, the inclusion of a right to secession in the constitution and also the retention of state ownership of all land felt that they had been virtually excluded from the constitution-making process.

Furthermore, even ethno-nationalist parties, that shared the EPRDF's constitutional vision and had initially been part of the transition process but were truly independent from the EPRDF, were excluded from the process.Footnote 32 Therefore, widespread ambivalence and in some cases even animosity towards the constitution became part of Ethiopian politics.Footnote 33 Most opposition parties have a large scale constitutional overhaul as an integral element of their electoral platform.Footnote 34 Their proposals target features of the constitution which are deemed to be its very core pillars.Footnote 35 Very often the basis for proposals for constitutional amendments or justifications for opposition politicians' hostile attitudes seems to be the fact that the constitution is perceived to be the handiwork of the EPRDF, carefully crafted to strengthen its hold on power. The exclusive authorship of the constitution by one political force has contributed greatly to this perception. This perception has persisted to this day and has bedevilled national politics. The EPRDF often accuses the opposition of being hell-bent on subverting the constitutional order, and projects itself as the gallant defender of a just and democratic constitutional system that fosters the right to self-determination of ethnic groups within the country.Footnote 36

Constitutional integrity

Another factor, other than the constitution-making or amendment process, that seems to be of relevance to the legitimacy of constitutions is the integrity of constitutional systems. “Integrity” refers to the degree to which constitutional practice is congruent with the constitutional text and the ideals it embodies.Footnote 37 To the extent that the content of a constitution is deemed to be appropriate and desirable by a society, a consistent constitutional practice by the relevant institutional actors that shows adherence to the constitution will enhance the constitution's legitimacy.Footnote 38

An examination of the Ethiopian constitutional system indicates that the system suffers from a severe lack of integrity. Despite the fact that political parties other than the EPRDF did not participate in creating the constitution, many of them consider aspects of the constitution to be laudable. Parties at both ends of the political spectrum (be they ethno-nationalist or Ethiopian nationalist) and their supporters find the provisions of the constitution providing for political liberties very desirable. Political parties espousing ethnic nationalism are also very fond of the self-determination clause in the constitution and the federal setup, albeit partially, on the basis of ethnicity. The groups that advocate a more radical version of ethnic nationalism and self-determination are particularly enthusiastic about the right to secession recognized in the constitution. But all these groups are disappointed by how the provisions and principles of the constitution which are most agreeable to them and their constituencies are disregarded in practice.

There is a perception that, behind the veneer of federalism and self-rule, there is a strong hierarchical and centralized power structure.Footnote 39 The autonomy of regional states from the centre and the assertiveness of parties (other than the TPLF) within the EPRDF have often been questioned.Footnote 40 The partnership of the four parties forming the EPRDF is considered a sham by many who ultimately see the EPRDF as nothing but a façade for the TPLF, and the system of ethnic federalism as an elaborate scheme of indirect rule which also doubles as a strategy of divide and rule.Footnote 41 This has led to the continued armed struggle of secessionist movements in the country despite the purported lawfulness of political activity in pursuit of secession in Ethiopia.Footnote 42 While secessionary sentiments in Ethiopia prevail strongly among some ethnic groups and while the constitution declares secession to be a right, it is rather strange that all political groups that have secession on their political agenda happen to be pursuing their objectives through armed struggle and are outlawed by the state.Footnote 43

The variance between constitutional provisions and practice is also evident in the sphere of political and civil liberties. Particularly since the closely contested and controversial general election of 2005, there has been a clear reversal in the gains made in political liberalization in Ethiopia.Footnote 44 As Jon Abbink put it, “[t]here is a nicely worded Federal Constitution in Ethiopia, but the government has difficulty in adhering to it. Moreover, the specific model of ‘revolutionary democracy’ officially espoused by the ruling EPRDF, the party built around the TPLF … represents in many ways a contradiction to the proclaimed constitutional principles.”Footnote 45 This state of affairs has compounded the legitimacy deficit of the FDRE Constitution. While adherence by the government to the constitution could have fostered allegiance to the constitution among the population and political parties, the consistent and blatant disregard of the constitution in practice by the very party which is its author and which verbally professes its loyalty to the constitution with great zeal has pushed the constitution's legitimacy deficit to crisis level. Tsegaye exhorts that “[t]he government of EPRDF (which is still in power), being the predominant force behind the making of the constitution, has the responsibility of applying the utmost fidelity to the constitution - through aggressive acts of implementation – so that, through such acts it can help the constitution garner an earned legitimacy thereby redeeming the fractured original legitimacy.”Footnote 46 Even if one were to say it is not too late to heed such calls, so far they have gone unheeded and there seems to be no sign that they will be heeded in the foreseeable future.

Constitutional vitality

Very much related to the integrity of a constitutional system, another essential factor that affects the legitimacy of a constitution seems to be its vitality. The vitality of a constitutional system could be understood as its demonstrated capacity to develop and grow. A very good proxy of the vitality of a constitutional system would be the cannons and jurisprudence that are developed in the process of implementing, enforcing and expounding the constitution. A constitutional text, however detailed and precise, cannot possibly address all issues that may arise subsequent to its adoption with sufficient specificity so as to be able to avoid controversies. If the constitutional system is alive or imbued with vitality, constitutional disputes will inevitably give rise to cases in the courts and debates in Parliament, and will also spawn scholarly and popular commentaries. In other words, the controversies will provide an opportunity for the development of a constitutional jurisprudence and the overall growth of the constitutional system.

Another important sign of vitality is the interaction with the surrounding environment. For a constitutional system, this will be manifested in the interaction or lack thereof of the constitution with the legal order that precedes it. If the legal order that precedes the constitution remains unaffected and unaltered despite the adoption of a new constitution or wholesale constitutional amendments, then that should be taken as a sign that the constitutional amendments or the newly adopted constitution have very little vitality. Such lack of vitality on the part of a constitutional system could be considered both as a sign of the lack of a constitution's legitimacy, and also a factor that diminishes it. A morbid constitutional system which is characterized by atrophy can hardly be viewed as being suitable or appropriate by any society. If not reviled and held in outright contempt, it will at least be considered irrelevant and as such will have very little sociological legitimacy.

The Ethiopian constitutional system is characterized by a dearth of constitutional jurisprudence that is very much indicative of the lack of vitality of the system. Though more than one and a half decades have elapsed since the adoption of the current Ethiopian Constitution, the body entrusted with the task of constitutional interpretation and the settlement of constitutional disputes (the House of Federation) has so far officially published only three decisions.Footnote 47 With the exception of one case regarding the jurisdiction of religious courts in family and succession mattersFootnote 48 and another case regarding the right to contest elections by candidates who do not speak the indigenous languages of a regional state,Footnote 49 the House of Federation and the Council of Constitutional Inquiry (CCI) (which is supposed to assist the House of Federation on matters of constitutional interpretation) have yet to make a decision that sheds light on the contours of the constitutional rights of individuals.Footnote 50 After a few initial test cases which were brought to the CCI and were rejected on preliminary grounds, the consensus among practitioners seems to be that bringing a matter to either the house or the council is an exercise in futility. As noted in one study,

“A mere seventy-two cases regarding constitutional interpretation have been submitted to the CCI Registrar in fifteen years. The HOF and CCI have only accepted four of these cases, rejecting the vast majority on procedural and substantive grounds. One cannot but marvel at such a low number of submitted cases emanating from a country of seventy million people that has experienced substantial human rights issues. Of the sixty-eight cases submitted to the CCI, only four or five have been referred from the courts.”Footnote 51

One could get a good sense of the jurisprudential dearth that we observe in the Ethiopian constitutional system by comparing the amount of case law generated in the constitutional systems of other African countries such as Mali and South Africa, which adopted new constitutions at the same time as the FDRE Constitution was adopted. In South Africa, the Constitutional Court decided an average of just over 25 cases each year between 1995 and 2010, while the Constitutional Court in Mali decided an average of ten cases each year between 1996 and 2009. In their 16 years of existence, the Ethiopian House of Federation and the CCI have decided only five cases on the merits.

Matters are not helped by the reluctance of the ordinary courts to have anything to do with the constitution. As Sisay observes, “Ethiopian courts also generally avoid referring to or applying the Constitution even in relation to issues the disposition of which the provisions on fundamental rights and freedoms are directly relevant [sic].”Footnote 52 This is partly because of the controversy that exists as to the role of the judiciary in constitutional interpretation.Footnote 53 Whatever the cause might be, the courts' aversion to enforcing the FDRE Constitution has contributed significantly to its morbidity.

Furthermore, though the adoption of the new constitution has led to the substantive revision of laws from imperial times through the adoption of new family codes in the various regional states and the enactment of a new Criminal Code (which has retained some of the illiberal provisions of the Imperial Criminal Code),Footnote 54 it has not prevented the adoption of new illiberal laws. The revisions of the substantive laws that have been undertaken so far focus on criminalizing harmful traditional practices and promoting women's rights.Footnote 55 The confined scope of such revisions has left significant administrative and legal instruments of undemocratic rule from past regimes intact. The most notable examples of newly adopted laws that are highly restrictive of freedom of expression, assembly and other civil and political rights include the Freedom of the Mass Media and Access to Information Proclamation,Footnote 56 the Charities and Societies ProclamationFootnote 57 and the Anti-Terrorism Proclamation.Footnote 58

In addition to this, though there are many articles and studies on ethnic federalism and the peculiar constitutional interpretation system adopted in the constitution, one can scarcely find any scholarly works that are meant to expound upon the constitution. The constitutional system is thus bereft of standards, doctrines and principles to give flesh to the constitutional dry bones. Authoritative or scholarly expositions of its contents are virtually non-existent. It also had very little impact in liberalizing the underlying legal order. All these seem to indicate that the constitution has not become a “living document”; it has not grown since its adoption and lacks vitality. This problem has been compounded by the fact that independent constitutional institutions such as the Human Rights Commission and the Institution of the Ombudsperson have so far failed to have any discernible impact.

TO SCRAP OR NOT TO SCRAP: THE CASE FOR RETENTION

This article has argued that the current Ethiopian Constitution suffers from a serious lack of legitimacy. This legitimacy deficit has been attributed to a constitution-making process that was not inclusive and also to the subsequent lack of integrity and vitality in the constitutional system. Unfortunately, having overseen the transformation of the FDRE into a de facto one party autocratic state, it is no longer realistic to expect the EPRDF to allow, let alone be the main agent of, “redemptive constitutionalism”Footnote 59 as had been hoped by some.Footnote 60 Therefore, the next issue to address will be whether the severity of the legitimacy crisis is such that it is likely to bring about calls for the constitution to be scrapped once the EPRDF's grip on power is no more.

In response to this question, one could argue that, in its content, the constitution encapsulates the aspiration of many Ethiopians for democracy and self-determination and this might be an important redeeming quality of the constitution. The constitution embodies fundamental freedoms that need to be recognized in any liberal polity. It also provides a framework for democratic governance. To this extent, anyone who desires democracy and political freedom will find the content of the constitution to be appealing. However, those whose interest lies only in having a democratic constitution which provides for multiparty democracy and individual rights and freedoms can conceive of a constitution that succeeds the current one and whose content will be on a par with, if not surpass, the current constitution in terms of democratic and individual rights. The same could not be said regarding those who are enamoured with the self-determination component of the current constitution.

For those who strongly support the federal set-up along ethnic lines, which the current constitution has instituted, and also its “self-determination up to secession” clause, the chances of a future constitution providing more expansive rights of self-determination are hardly conceivable. These are issues that must be taken into account when considering what the consequences of the lack of legitimacy of the constitution will be. We might assume that, given its lack of legitimacy, the current Ethiopian Constitution will be replaced as soon as the EPRDF loses its grip on power. However this assumption fails to take into account the strongly favourable view that many have regarding certain aspects of the constitution. In regions of the country where there is a strong sense of ethnic nationalism, regardless of the grounds that vitiate the constitution's legitimacy, the FDRE Constitution might be viewed as legitimate. Among these groups, the self-determination component of the constitution redeems the constitution and would make its abolition unacceptable. So, even if the EPRDF loses control over the state machinery of coercion, not all who have opposed it will agree on the implications of the lack of legitimacy of the FDRE Constitution.

In all likelihood, many “Ethiopian nationalists” will consider the lack of legitimacy of the FDRE Constitution to be so severe that it must be abandoned it in its entirety and a new constitution be drafted. Those who are in the ethnic nationalist camp will most likely argue that the deficit in the legitimacy of the FDRE Constitution is something that has come about not as a result of, but rather in spite of, its content, and as such the proper remedy is the faithful implementation of the constitution. In a post-EPRDF era, the fate of the FDRE Constitution could be a great bone of contention for all the political forces who are currently in opposition. The contention will of course not be whether or not the constitution has, in its making or subsequent disuse, suffered from a crisis of legitimacy. This will be something that all the political actors other than the EPRDF and its affiliates will easily agree on. The real disagreement will arise as to what should be the consequence of the legitimacy crisis of the FDRE Constitution. The question will be whether the legitimacy deficit justifies the scrapping of the current constitution and the writing of a new constitution or whether the constitution's content can be considered sufficiently redemptive to justify its substantial retention albeit with some amendments. The following three arguments are forwarded to justify the latter option.

The first reason why it would be preferable to keep the current constitution formally, even if it might be substantially revised in a post-EPRDF Ethiopia, is the need to allay the fears of ethno-linguistic groups among which the constitution's federal setup and self-determination clause are held to be sacrosanct. Even though at the moment it would be difficult to gauge public sentiment accurately, it is safe to assert that a significant portion of the Ogaden and the Oromo (two major ethnic groups which have been historically marginalized) and even the Tigrayan elites will be quite uncomfortable, if not outright hostile, to proposals that might in any way risk the right to self-determination up to secession and the ethnic federal arrangement. If a new constitution is to be adopted from scratch in a post-EPRDF Ethiopia, it would certainly create such a risk. If a new constitution is to be adopted, the form of federalism should Ethiopia have, as well as whether or not there should be a right to secession, would obviously be hotly contested. This would mean that the rights which have been secured by the FDRE Constitution, at least on paper, would be subject to fresh debate and negotiation. This would not be something that would be welcomed by those who cherish these rights and the ethnicity based federalism. A proposal to go back to the drawing board and adopt a new constitution would probably be seen as an attempt to turn back the clock and abandon the gains made by historically marginalized ethnic groups. As such it might have a disastrous consequence and be quite divisive.

The issue of ethnic federalism and the right to secession are and have always been controversial in Ethiopia. However the debate so far has been conducted in a constrained environment. The constraint has been the hegemony of the EPRDF, which has diminished the likelihood that the debate will lead to an actual change of the relevant constitutional provisions. Once the hegemony of the EPRDF is out of the picture, this constraint will no longer exist. That could be a recipe for disaster. Both the proponents and detractors of ethnic federalism and the right to secession feel strongly about their position and they have abiding mutual mistrust. The idea of scrapping the FDRE Constitution would antagonize the proponents of ethnic federalism and the right to secession. It would also result in a frontal collision between ethno-nationalists and Ethiopian nationalists. It might even provoke the former to seek secession immediately and push the country into turmoil. The safest way to allay the fears of such groups and to ensure that they will participate in the process of building a democratic Ethiopia would be not to tamper with those aspects of the FDRE Constitution that are very dear to them. This would necessarily mean abandoning the idea of replacing the FDRE Constitution with a new constitution.

Another reason that would counsel against the adoption of an entirely new constitution and the abandoning of the FDRE Constitution is the need to break the persistent pattern in which every new government in Ethiopia inaugurates a new constitutional order. This pattern of behaviour has created the impression that constitutions are handmaids of power specifically tailored to fit the needs of whoever is in power. No written constitution has yet survived its authors and this has adversely affected the constitutional culture of the modern Ethiopian state. Constitutions are seen as no more than fig-leafs and at best as the political platforms of a regime that should be discarded as soon as their authors are out of office. This results in a low public regard for constitutions among both the public and power holders.

If the FDRE Constitution is discarded and an entirely new constitution is adopted in the aftermath of the EPRDF, in all likelihood the popular perception of the new constitution will be based upon the established pattern of behaviour. The new constitution will also be seen as an instrument that facilitates and legitimizes power, as opposed to being seen as a normative framework that constrains the power of whoever succeeds the EPRDF. Such perceptions might change in time depending on the vitality, integrity and original legitimacy of the new constitution. But such changes occur slowly. In the meantime, public perception, based on previous experience with constitutions (which is probably reflected in the attitudes of those in power as well), could be detrimental to a new constitution. If the ideal of constitutionalism is to take root in Ethiopia, there needs to be practical demonstration of the fact that constitutions as a rule are supposed to endure and outlive their authors.

A third reason for retaining the FDRE Constitution is the fact that adopting a new constitution is a long, complicated and expensive process. Not only would it take years and cost a lot of money, the process would also unnecessarily accentuate already existing differences among various groups. Retaining the FDRE Constitution, albeit with some amendments, would avoid the expense and trouble of adopting a new constitution. The focus and political capital that would have been spent on adopting a new constitution could be channelled towards other matters.

In connection with these arguments, it is interesting to note the cautionary words of Brandt, Cottrell, Yash Ghai and Regan, who are scholars with extensive experience in the constitution-making processes of various countries. These scholars consider the high cost and expense of making new constitutions, the divisiveness of such projects, the risk of failure, as well as the need to have a sense of permanency attached to constitutions, as grounds that favour the retention of existing constitutions. According to them:

“No constitution is perfect, but this does not mean that a country needs a whole new constitution. Sometimes it may be a mistake to rush into a commitment to such a new constitution. People may insist on this precisely because they have not analyzed what is wrong with the existing constitution. ‘Let's start from scratch’ is a way of avoiding, at least for the time being, such detailed analyses. Before embarking on a major exercise of constitutional design, the question should perhaps be asked: ‘Is our journey really necessary?’ A problem with the government does not necessarily demand a new constitution.”Footnote 61

When the EPRDF loosens or loses its grip on power, all political actors in Ethiopia would be well advised to heed the wisdom in this statement. Retaining and revising the FDRE Constitution rather than tossing it away as a relic of the past is the most reasonable course of action that could optimize the prospects for a united and democratic Ethiopian state.

SOME THOUGHTS ON CONSTITUTIONAL REFORM

Assuming that there is agreement on the need to retain the FDRE Constitution, despite its lack of legitimacy, even after the end of the EPRDF's hegemony, the question that will linger will be how to overcome the constitution's legitimacy deficit. A solid constitutional basis is clearly necessary if Ethiopians are to aspire to have a democratic future at the end of the current de facto one-party regime. In the absence of a sound constitutional foundation, it is not possible to conceive a well-functioning democratic order in Ethiopia. Given its lack of legitimacy, the FDRE Constitution, as it is, is not in an ideal shape to serve this purpose. A sound constitutional foundation for a democratic Ethiopia has to mean at the very least a legitimate constitution. So the dilemma here is that, on the one hand, this article has argued that there is a need to retain the FDRE Constitution despite its lack of legitimacy, but on the other hand it is also imperative that a constitution enjoys a great deal of legitimacy in order to establish democracy in Ethiopia. The most sensible solution to this predicament would be to undertake a comprehensive constitutional reform with a view to overcoming the legitimacy deficit of the FDRE Constitution. Such reform should be undertaken by way of extensive amendments to the constitution. This section of the article will discuss some of the substantive and procedural aspects of the reform that the author advocates. It should be borne in mind that the procedure to be taken and the content of the constitutional reform in a post-EPRDF Ethiopia is a major topic that should be dealt with in a separate article. In this article, the topic will be touched upon in very broad terms. As such the treatment of the issue will not be exhaustive and will leave much to be addressed in subsequent research projects.

The constitutional reforms that could cure the legitimacy deficit of the FDRE Constitution must first and foremost meet an important procedural requirement. One of the causes of the legitimacy deficit of the FDRE Constitution regards the way the constitution was adopted. The constitution was virtually a production of the EPRDF and the process in which it was made excluded all other organized political actors. Any future constitutional reform must be undertaken in a starkly different fashion. While behind-the-scene negotiations among political parties might be inevitable and even desirable to some extent,Footnote 62 by and large the reform process must be public and open to the participation of the public and all interested civic associations and parties, regardless of the views they hold. No political litmus test, such as favouring or opposing ethnic-federalism, the right to secession or public ownership of land must be used to exclude any group from the process. The process must therefore allow for the widest possible participation of all civic and political organizations and must be a genuinely democratic exercise.

As for the substantive content of the sort of constitutional reform that is being proposed, the focus should be on those aspects of the constitution that have contributed most to its legitimacy deficit. This article has noted that, besides the constitution-making process, its lack of vitality and integrity were the major causes of the legitimacy crises that the FDRE Constitution faces. Remedying the lack of vitality and integrity should therefore be a priority in any constitutional reform project. This would in turn require that the constitutional reform address the underlying causes of the problem.

The lack of vitality and integrity of the constitution has many causes and not all of them are to be found within the constitution itself. As such, these extra-legal or constitutional causes cannot be addressed by constitutional reform. However there are at least two major causes which have contributed to the lack of legitimacy and vitality of the FDRE Constitution and are rooted in the content and design of the constitution itself. These are the fact that the constitution allowed a great deal of power to be concentrated with the executive branch of government with very few instruments for horizontal accountabilityFootnote 63 and that there is no effective constitutional enforcement mechanism. These have made it very easy for the personalization and concentration of power and its deployment as an instrument of repression. By design or default, the constitution is very short on ways through which executive power can be controlled and checked, save for the “nuclear” option of a vote of no confidence by the House of People's Representatives. The first past the post electoral system, coupled with the parliamentary form of government adopted in the constitution, makes it very easy for a single party to obtain a majority in the legislature and thereby assume control of the executive. Hence, in the ordinary course of events, legislative power and executive power are likely to be held by the same party under the current constitutional design. Given the imperatives of party discipline of political parties where there is a parliamentary form of government and the natural pressure on backbenchers to support the cabinet so that their party will stay in power, Parliament could hardly provide meaningful control of the excesses of the executive.

The judiciary is also in no better position to check the concentration and abuse of power. The judiciary does not have the power to review both legislative and administrative acts.Footnote 64 If future constitutional reforms are to succeed in giving rise to a constitutional system that shows vitality and integrity, the reforms have to ensure that such concentration of power by the executive will be pre-empted. Impeding concentration and personalization of power leading to the total hegemony of the executive and the subordination of all other branches of government and organs of the state must be one of the priorities of future constitutional reform.

Another problem that has contributed to the lack of vitality and integrity in the current constitution has been the absence of a real constitutional enforcement mechanism. The fact that constitutional arbitration was entrusted to the CCI and the House of Federation has allowed the ruling party to sit as a judge on its own case. This has made the settlement of constitutional disputes in Ethiopia a farce in which the victory of the governing party is always a forgone conclusion. Under these circumstances, the constitution has been reduced to something that the government is free or even encouraged to consult, but not a law by which it must abide. Any future reform of the constitution must tackle this problem.

It should be noted, once again, that these suggestions are put in a rather crude manner and will need to be supplemented and elaborated upon. They are what the author believes necessary components of future reform but they are clearly not sufficient by themselves to guarantee the success of constitutionalism in Ethiopia. In fact, so long as the core components of the federal arrangement as it exists now, including the right to secession, are not tampered with, the constitutional reformers should have wide latitude to propose amendments to the constitution.

CONCLUSION

The preceding analysis has shown that the Ethiopian Constitution suffers from a crisis of legitimacy that makes its future very precarious. This crisis has arisen due to the deeply flawed constitution-making process, the subsequent constitutional atrophy and lack of integrity in the constitutional system. Therefore, if the political hegemony of the EPRDF, the major nominal proponent of the constitution, disappears, there might be many who will insist on the adoption of a brand new constitution. However, the need to create a new constitutional culture in Ethiopia as well as the need to allay the fears of ethnic groups which fear the resurgence of a homogenizing, militant unitarism will counsel against scrapping the FDRE Constitution. Nevertheless, to remedy some of the shortcomings in the content of the constitution and also to mark that there is a clear break from the current undemocratic state, it might be advisable to undertake a comprehensive constitutional reform and revision by introducing a set of extensive constitutional amendments.

Footnotes

1 In this context, the word “author” is used rather loosely to refer to the individual or group of individuals whose political power sanctioned the constitutional text into becoming a positive law, rather than the actual drafter of the constitutional text. For an overview of the Imperial Constitutions, see Selassie, B Habte “Constitutional development in Ethiopia” (1966) 10/2Journal of African Law 74.

2 The PDRE Constitution was authored by the military junta which aspired to give its continued rule some ideological and legal legitimacy by establishing a “Peoples' Democratic Republic”. This constitution was rooted in socialist principles and lasted only four years. For an overview of the PDRE Constitution, see Fisseha-Tsion, M “Highlights of the Constitution of the Peoples' Democratic Republic of Ethiopia (PDRE): A critical review of the main issues” (1988) 14 Review of Socialist Law 129.

3 The FDRE Constitution is Ethiopia's current constitution. It came into force in 1995 and was authored by the Ethiopian People's Revolutionary Democratic Front, the armed movement that overthrew the military regime and has been in power since 1991. For an overview of the salient features of the FDRE Constitution, see Nahum, FConstitution For a Nation of Nations: The Ethiopian Prospect (1997, The Red Sea Press) at 49–64.

4 See, id at note 3.

5 Fallon, RH “Legitimacy and the constitution” (2005) 118/6Harvard Law Review 1794.

6 Footnote Ibid.

7 Id at 1794–95.

8 Kay, RS “The creation of constitutions in Canada and the United States” (1984) 7 Canada-United States Law Journal 118.

9 Fallon “Legitimacy and the constitution”, above at note 5 at 1796–98.

10 Barnett, RE “Constitutional legitimacy” (2003) Columbia Law Review 103 at 114.

11 Fallon “Legitimacy and the constitution”, above at note 5 at 1795; Kay “The creation of constitutions”, above at note 8 at 118.

12 Fallon, ibid.

13 Id at 1796.

14 Kay “The creation of constitutions”, above at note 8 at 118.

15 Ishiyama, J “Ethnic partisanship in Ethiopia” (2010) 16/3–4Nationalism and Ethnic Politics 290. This empirical study shows that, although ethnicity does not trump all other considerations, it has considerable political salience in Ethiopia.

16 Lustick, I “Stability in deeply divided societies: Consociationalism versus control” (1979) 31/3World Politics 325 at 325. See also Choudhry, SConstitutional Design For Divided Societies: Integration or Accommodation? (2008, Oxford University Press) at 5; Choudhry describes divided societies as societies marked by ethnic, religious, cultural or linguistic differences which are politically salient.

17 See H Lerner “The people of the constitution: Constitution-making, legitimacy, identity” (paper presented at the mini-APSA student conference, Department of Political Science, Columbia University, 2004).

18 Choudhry Constitutional Design, above at note 16 at 6.

19 For a discussion of the relationship between the process of making constitutions and their legitimacy, see: Chambers, S “Democracy, popular sovereignty and constitutional legitimacy” (2004) 11/2Constellations 153; and V Hart “Democratic constitution making” (United States Institute of Peace special report no 107, 2003), available at: <http://www.usip.org/files/resources/sr107.pdf> (last accessed 7 March 2012).

20 For an insightful discussion of the Ethiopian constitution-making process and how the defects in the process have undermined the FDRE Constitution's legitimacy, see Regassa, T “The making and legitimacy of the Ethiopian Constitution: Towards bridging the gap between constitutional design and constitutional practice” (2010) 23/1Afrika Focus 85 at 98–104.

21 MA Wolde “A critical assessment of institutions, roles and leverage in public policymaking: Ethiopia, 1974–2004” (PhD thesis, University of Stellenbosch, 2005), available at: <http://ir1.sun.ac.za/handle/10019.1/1452?show=full> (last accessed 8 March 2012), at 142–48. For a rather unconvincing account of the process that downplays the dominance of the EPRDF despite admitting its preeminent role, see Eshete, A “The protagonists in constitution making in Ethiopia” in Hydén, G (ed) Constitution-Making and Democratization in Africa (2001, Africa Institute of South Africa) 69 at 69–71.

22 See for example Selassie, AG “Ethiopia: Problems and prospects for democracy” (1992) 1 William and Mary Bill of Rights Journal 212.

23 A Berhe “A political history of the Tigray People's Liberation Front (1975–1991): Revolt, ideology and mobilisation in Ethiopia” (PhD thesis, Amsterdam, 2008) at 331–44.

24 A good way to gauge the popularity of these views is to see the level of support that the Coalition of Unity and Democracy (CUD), a coalition of opposition parties which espoused such views, enjoyed in the 2005 general election. According to the results released by the National Electoral Board of Ethiopia, which are quite controversial since the opposition has claimed there was substantial vote rigging, the CUD won 109 out of the 547 seats which were contested. The proportion of votes obtained by the various parties in the electoral districts where no party challenged the results indicates that the CUD had the support of 21.9% of the electorate. Taking this figure as a baseline and ignoring for now claims that the CUD actually won more seats, it is safe to assert that views which dissent from EPRDF's constitutional vision have a significant following in Ethiopia. See Ishiyama, J “Alternative electoral systems and the 2005 Ethiopian parliamentary election” (2009) 10/4African Studies Quarterly 39 at 45.

25 For an overview of the constitution-making process by the head of the commission which drafted the constitution, see Wedajo, K “The making of the Ethiopian Constitution” in Hydén, G (ed) The Making of the Ethiopian Constitution (Africa Institute of South Africa, 2001) 132.

26 Members of the commission were drawn largely from political parties and the transitional legislative house. Though diverging views were aired in the commission, the EPRDF had a visible dominance. See Wolde “A critical assessment”, above at note 21 at 142–45.

27 See Transitional Period Charter of Ethiopia, available at: <http://www.ldphs.org.za/resources/local-government-database/by-country/ethiopia/peace-agreements/The%20Transitional%20Period%20Charter%20of%20Ethiopia.PDF> (last accessed 5 August 2011).

28 Wolde “A critical assessment”, above at note 21 at 141–47.

29 See Ashenafi, M “Ethiopia: Process of democratization and development” in An-Na'īm, A (ed) Human Rights Under African Constitutions: Realizing the Promise For Ourselves (2003, University of Pennsylvania Press) 29 at 31–33.

30 Vestal, TM “An analysis of the new constitution of Ethiopia and the process of its adoption” (1996) 3/2Northeast African Studies 21 at 26.

31 Nohlen, D, Krennerich, M and Thibaut, BElections in Africa: A Data handbook (1999, Oxford University Press) at 381.

32 Young, J “Ethnicity and power in Ethiopia” (1996) 23/70Review of African Political Economy 531 at 536–37.

33 T Alebachew “When [a] constitution lacks legitimacy in the making: The case of Ethiopia” (unpublished LLM thesis, Addis Ababa University, Graduate Studies, 2011), available at: <http://etd.aau.edu.et/dspace/bitstream/123456789/2769/1/TEGUADDA%20ALEBACHEW.pdf> (last accessed 22 June 2012) at 73–75.

34 See for example the Coalition for Democracy manifesto for the 2005 election, unofficial English translation available at: <http://www.addisvoice.com/wp-content/uploads/2010/03/KINIJIT-MANIFESTO-English.pdf> (last accessed 12 June 2013) at 54–56.

35 Footnote Ibid.

36 This accusation was not a mere public denunciation but did in fact take the form of criminal charges pressed against many in the Coalition for Unity and Democracy leadership in the aftermath of the 2005 general election; “outrages against the constitution” was among the charges brought by the prosecutor. See “Ethiopian protest leaders guilty” (11 June 2007) BBC News, available at: <http://news.bbc.co.uk/2/hi/africa/6740929.stm> (last accessed 7 March 2012).

37 This is perhaps a form of earned or derivative legitimacy which Tsegaye defines as “legitimacy that is derived from a consistent application, and so one derived from fidelity to the text (hence derivative legitimacy)”: T Regassa “The making and legitimacy of the Ethiopian Constitution”, above at note 20 at 97.

38 The inverse is also true. That is to say that, as much as congruence between practice and text enhances the legitimacy of a constitution, the legitimacy of a constitution could also enhance the congruence between text and practice. In other words, if the constitution has original legitimacy, it is more likely to be implemented faithfully and as such to have constitutional integrity. This argument is made by Tsegaye in relation to the Ethiopian Constitution. See Regassa, id at 88.

39 International Crisis Group “Ethiopia: Ethnic federalism and its discontents” (Africa Report no 153, 4 September 2009), available at: <http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/ethiopia-eritrea/Ethiopia%20Ethnic%20Federalism%20and%20Its%20Discontents.ashx> (last accessed 22 June 2012), at 19–23.

40 Gudina, MEthiopia: Competing Ethnic Nationalisms and the Quest for Democracy, 1960–2000 (2003, Shaker Pub) at 146–48.

41 Aalen, LEthnic Federalism in a Dominant Party State: The Ethiopian Experience 1991–2000 (2002, Chr Michelsen Institute, Development Studies and Human Rights), available at: <http://bora.cmi.no/dspace/bitstream/10202/186/1/Report%202002-2.pdf> (last accessed 27 May 2013), at 53; Herther-Spiro, NB “Can ethnic federalism prevent ‘recourse to rebellion’? A comparative analysis of Ethiopian and Iraqi constitutional structures” (2007) 21/1Emory International Law Review 321 at 337–38.

42 Habtu, A “Multiethnic federalism in Ethiopia: A study of the secession clause in the constitution” (2005) 35/2Publius: The Journal of Federalism 313 at 325.

43 Teshome, WB “Ethiopian opposition political parties and fronts: Past and present” (2009) 4/1International Journal of Human and Social Sciences 60 at 65.

44 Aalen, L and Tronvoll, K “The end of democracy? Curtailing political and civil rights in Ethiopia” (2009) 36/120Review of African Political Economy 193 at 193.

45 Abbink, J “The Ethiopian Second Republic and the fragile ‘social contract’” (2009) 44/2Africa Spectrum 3 at 6.

46 T Regassa “The making and legitimacy of the Ethiopian Constitution”, above at note 20 at 133.

47 See (2000) 1 Journal of Constitutional Decisions 1.

48 For a summary of this (Kedija Beshir) case, see Kassa, G “Mechanisms of constitutional control: A preliminary observation of the Ethiopian system” (2007) 20/1–2Afrika Focus 75 at 91–92.

49 For a summary of this (Benishangul-Gumuz) case, see id at 89–90.

50 Though Assefa Fiseha argues that the “HoF [House of Federation] has over the years evolved as a legitimate body for the settlement of disputes at least as far as issues of high political and constitutional significance are concerned”, examples of such cases of “high political and constitutional significance” decided by the HoF are relatively rare and he could discuss only two such cases (Silete and Benishangul-Gumuz): Fiseha, A “Federalism and the adjudication of constitutional issues: The Ethiopian experience” (2005) 52/1Netherlands International Law Review 1 at 22–28. The author has learned that the HoF recently decided a case regarding the constitutionality of legislation authorizing the head of the Customs and Inland Revenue Authority to fire employees of the authority suspected of being corrupt and absolutely precluding courts from reviewing the legality of such decisions. See Ashenafi Amare et al v The Ethiopian Revenues and Customs Authority, decision of the Council of Constitutional Inquiry, file no 101/2009, decided on 9 February 2010 (unpublished and on file with the author).

51 Mgbako, C et al. “Silencing the Ethiopian courts: Non-judicial constitutional review and its impact on human rights” (2005) 32 Fordham International Law Journal 259 at 294.

52 See Yeshanew, SA “The justiciability of human rights in the Federal Democratic Republic of Ethiopia” (2008) 8/2African Human Rights Law Journal 273 at 282.

53 The constitution gives to the House of Federation, which is a non-legislative upper house of Parliament, the ultimate power to interpret the constitution and settle constitutional disputes (see art 83(1) of the FDRE Constitution). However, there has been a constant debate as to whether the judiciary retains some residual or inherent power to enforce the constitution. Whatever the correct answer might be doctrinally, in reality the courts have been reluctant to enforce the constitution and their reluctance has contributed to the constitution's lack of vitality. For a sense of the controversy, see in general Tesfaye, Y “Whose power is it anyways: The courts and constitutional interpretation in Ethiopia” (2008) Journal of Ethiopian Law 128; and Regassa, T “Making legal sense of human rights: The judicial role in protecting human rights in Ethiopia” (2009) 3/2Mizan Law Review 288 at 327–29.

54 See for example art 486(a) (“Inciting the public through false rumours”) of the FDRE Criminal Code 2005.

55 See Ross, TJ “A test of democracy: Ethiopia's mass media and freedom of information proclamation” (2010) 114 Penn State Law Review 1047 at 1060–64; and Brems, E “Ethiopia before the United Nations treaty monitoring bodies” (2007) 20/1–2Afrika Focus 49 at 58.

56 Proclamation no 590/2008. See Ross, ibid.

57 Proclamation no 621/2009. See “New law in Ethiopia puts freedom of association in jeopardy” (9 January 2009) Human Rights House Network, available at: <http://humanrightshouse.org/Articles/9544.html> (last accessed 8 March 2012).

58 Proclamation no 652/2009. See “Analysis of Ethiopia's draft anti-terrorism law” (30 June 2009) Human Rights Watch, available at: <http://www.hrw.org/en/news/2009/06/30/analysis-ethiopia-s-draft-anti-terrorism-law> (last accessed 8 March 2012).

59 Balkin, JM “Original meaning and constitutional redemption” (2007) 24 Constitutional Commentary 427 at 427.

60 See Regassa “The making and legitimacy of the Ethiopian Constitution”, above at note 20. See also T Regassa “Between constitutional design and constitutional practice: The making and legitimacy of constitutions in Ethiopia” (paper presented at the Conference on Constitutionalism and Human Security in the Horn of Africa, Addis Ababa: Inter Africa Group, 2008) at 16–50.

61 Michele, B, Cottrell, J, Ghai, Y and Regan, AConstitution-Making and Reform Options for the Process (2011, Interpeace) at 36.

62 Elster, J “Forces and mechanisms in the constitution-making process” (1995) 45/2Duke Law Journal 364 at 384.

63 See O'Donnell, GA “Horizontal accountability in new democracies” (1998) 9/3Journal of Democracy 112.

64 Tesfaye “Whose power is it anyways”, above at note 53.

Ibid
Ibid