Yonatan T. Fessha, @YonatanFessha
Zemelak Ayele @zemelak_a
Solomon A. Dersso @SolomonADersso &
Adem Abebe @AdamAbebe
Addis Abeba, May 14/2020 – As students of Ethiopian constitutional law, we cannot remember a time as interesting as the last few weeks. The debate around the constitution has attracted even those that are skeptical of the current constitution. At the same time, the divergent views expressed by the contributors have left some dumbfounded. Is the Constitution written in Chinese? That was the question of one Twitter user.
Contrasting views are inherent to any discussion of law, let alone when the debate is on a constitution which is usually broadly formulated and less on detail. It is with this spirit and the excitement it has brought that we have now decided to pen this piece together to say few more words on the constitution interpretation road the government has taken and the road that awaits the House of Federation (HF) and its expert body, the Council of Constitutional Inquiry (CCI).
To begin with, not everything is disputed. Everyone more or less agrees that the federal and state elections, scheduled in August, cannot be held as planned. The COVID-19 state of emergency declared by the government has wide support. Everyone agrees that the constitution does not specifically address on what should be done if an election cannot be held before the end of a term of the current parliament. The difference is in how the silence of the constitution should be interpreted.
That constitutional silence
For some, the constitutional silence indicates the absence of a constitutional solution. Based on that, they call for a political solution. But, as some of us argued earlier, this is a call for a collective agreement to ignore the constitution. Others have sought to provide a constitutional basis to the same proposal by calling for the use of the clause of the Constitution that allows the Prime Minister to dissolve parliament, to be followed by the establishment of an inclusive caretaker government.
There are two major problems with the proposal. First, according to our reading of the constitution, the purpose of dissolving parliament is to call an early election (commonly known as snap elections), which is very common in parliamentary democracies.[i] That, we believe, is not the scenario we are dealing with. The assumption behind the dissolution of parliament is that the next elections will be held before the five-year term limit expires. Unless understood as such, it means that an incumbent can always extend its term by at least six additional months by deliberately dissolving parliament just before its term expires. Second, after relying on Article 60 of the Constitution to call for the dissolution of parliament, the proposal calls for the establishment of an inclusive caretaker government that will replace the current administration. But that is not what the constitution provides for. In fact, in the event of a dissolution of parliament, the Constitution expects the sitting administration to continue to govern the country for the next six months after the dissolution of parliament, albeit with less powers and responsibilities.
There are also other major problems with the proposal. It is possible that putting in place an inclusive caretaker government, which might include engaging a wide range of stakeholders in the interim, could take a much longer time than the needed period of postponement further, if parliament is dissolved, but there is need to extend the emergency or issue a new one, there would not be a parliament to extend or approve it under the Constitution. Finally, the logic of caretaker government with limited powers is inconsistent with the logic of emergencies, which necessitates a government with full, even exceptional powers (such as shutting your business, or telling you to pray at home…etc.) during and in the immediate aftermath of the emergency.
We believe there is a constitutional silence. But we also believe that constitutional silence cannot be equated with the absence of a constitutional solution. Constitutional interpretation is sought not only when the meaning of a provision is contested but also when there is a gap or unforeseen circumstance. Courts and relevant constitutional adjudicating bodies address gaps or unforeseen circumstances by interpreting the constitution based on its founding principles and the general framework. If anything, the current discussions on the constitution reveal that interpretation is unavoidable.
The advisory power of the House
Some argue that the House does not have the power to offer advisory opinion. But the Proclamation that provides for the powers and responsibilities of the House of Federation (HoF) gives the latter the discretion to provide ‘consultancy services’.[ii] Yet some, express doubt on the constitutionality of the proclamation arguing that reliance should only be made on the provisions of the constitution. But this is problematic. It is like saying that any exercise of power can only be accepted if it is explicitly provided in the Constitution. But it does not work like that. Proclamations and regulations give effect to the broadly formulated constitution by providing detailed rule on different subject areas. Further, the argument that parliament cannot adopt a proclamation to give effect to constitutional stipulations unless explicitly requested by the Constitution itself is confusing a constitutional obligation to adopt a law with the discretionary powers of the government to issue laws on a wide range of matters. It also ignores the fact that until those proclamations and regulations are challenged and found to be inconsistent with the Constitution and rendered invalid by the House, they remain the law of the land and the basis for the exercise of power.
In any case, the advisory role of the HoF and the CCI has a basis in the Constitution. The Constitution provides the HoF the broad power of interpreting the constitution. Constitution is interpreted in the course of resolving constitutional disputes but also when offering advice to a party that is seeking constitutional guidance. That is also what the drafters of the constitution had in mind. They stated that ‘the Council of Constitutional Inquiry may review constitutional disputes that may be submitted to it by a court and interested party; and issues involving constitutional interpretation’.[iii] That is probably why the Proclamation that specifies the powers and duties of the CCI allows an abstract review by stating that one third or more members of the House of Peoples Representatives may request for constitutional interpretation.[iv] That is also why the Proclamation that provides for the powers and responsibilities of the HoF gave the latter the discretion to provide consultancy services. After all, the body tasked with constitutional interpretation in Ethiopia is a political body and not a court, which makes its power to offer advice less problematic. Perhaps, the request for guidance should have been directed to the HoF, which could then have referred it to its expert body, the CCI.
In any event, this would not be the first time for the House to provide an advisory opinion. In 2000, the House was asked by the Office of the late Prime Minister Meles Zenawi to give its opinion on whether the federal government can enact family law, a power that is not expressly granted to the federal government. The House declared that the federal government could indeed enact family law so long as the application of the law is not nation-wide and is limited to the two administrative cities (Addis Abeba and Dire Dawa). More recently, in January 2014, members of the House of Peoples Representatives were unsure if they have the constitutional power to deal with the registration of urban land since land administration, according to the federal constitution, is something that is left to the state governments. They sought and received guidance from the HoF. Of course, this does not mean that the HoF cannot and has not refused to give advisory opinion. The law clearly indicates that the HoF has the discretion and not the obligation to provide advisory opinion. This is probably a wise decision as the flood of requests for advice would have made it dysfunctional, though the discretionary power can be deployed for political purposes.
But we have our own misgivings about the model of constitutional review that Ethiopia has chosen. It is not institutionally suitable. Its impartiality is questionable. That makes it politically problematic. But it is a constitutionally valid option. Perhaps what we should focus, and hope, is that the Council of Constitutional Inquiry and the House of Federation mitigate the adverse impacts of the chosen option, both in the process they follow and the nature of the advisory opinion they eventually offer.
One of the main concerns about relying on the HoF and the CCI is that these are not institutions known for transparency and public engagement. Despite the legal mandate to hear experts and other resource persons and the absence of prohibition against public hearings, the deliberations of the CCI were never public and their decisions are not published. That adds to the mistrust and perceived lack of independence from the political entities.
The Constitution imposes under Article 12 an obligation requiring the conduct of affairs of government to be transparent. There is nothing to suggest that this constitutional principle of transparency does not apply on all institutions of the state. If anything, when it comes to bodies with judicial responsibility such as the HoF and the CCI, it can be surmised that this principle is an embodiment of a judicial practice of holding hearings that are open to the public. The more the public interest in the matter, the more fundamental the constitutional imperative for conducting hearings in public, which in recent times expanded to include live transmission of such hearings.
In an unprecedented move, the CCI has now established amicus procedure and has made a public announcement calling on legal experts to make written submissions as amicus. It will also hear selected experts in a public hearing. There are also reports that the CCI may broadcast/stream the hearings. This opening of the proceedings is critical to connect with the public and dispel perceptions of lack of independence and competence. But we believe that the myriad of legitimacy concerns arising from the institutional deficiency of the process require further procedural innovations that allow wider participation in the process. If the legitimacy of the process is to be enhanced comprehensively, it is also important to adopt, as argued here, a liberal approach to the requirement of standing, thereby allowing ‘interested members of the public to make submissions’ and not limit the participation to lawyers.
The advisory opinion: Going beyond the minimum
There are two possible opinions that we can expect from the CCI and the HoF. It might advise government that the Constitution is clear on the term of Parliament and that there is no constitutional basis to extend the term of the sitting administration. Alternatively, it might advise that the current government can and should continue governing the country until the next elections are held. The first outcome will certainly lead us into a constitutional crisis given that is hardly possible to hold elections before 10 October 2020 when the term of the current Parliament comes to an end. Equally, the second outcome makes many anxious, fearing that the government may use the advice to postpone the elections indefinitely. The question is whether the HoF can go beyond advising on whether the term of parliament can be extended and offer suggestions that either ensure that elections are held within the shortest time possible or help to avoid a constitutional crisis in the event that the term of the current administration cannot be extended.
In many countries, adjudicating bodies have an explicit or implied constitutional authority to provide an order that goes beyond declaring whether a decision or a law is constitutional. They play a more hands-on role by participating in the implementation of their order. In South Africa, for example, former President Jacob Zuma notoriously used taxpayers’ money in an amount of 25 million USD at the time to upgrade his private residence. That was found to be inappropriate by the country’s ombudsperson that asked him to pay back the money. He refused to comply with the order. The matter went to the Constitutional Court. The Court declared the action of the President unconstitutional. But it went beyond that and put in place an arrangement to ensure that the President pays back the money. It instructed the National Treasury to determine the percentage of the cost the President must pay to the state and submit its report to the Court. Once the Court approved the report of the National Treasury, the President was instructed to pay the amount determined by the National Treasury. This hands-on approach of the South African Constitutional Court and courts in other jurisdictions begs the question whether the HoF can go beyond advising whether the terms of parliament can be extended or not. The problem is that what we are currently dealing with is not a dispute. It is a request for an advisory opinion. But it would not be farfetched to make an analogy.
As the ultimate interpreter of the Constitution, the House of Federation is the guardian of the constitution and the constitutional order. With that in mind, we believe that it would not be enough for the Council and the House to simply advise the government on whether the term of the parliament can be extended and how. In the event that it provides for the extension of the term of parliament, the House and the CCI must suggest a mechanism to ensure at least two things. One is a mechanism to ensure that election will happen within a reasonable period once the condition on the ground allow for it. In this regard, the CCI and the HoF must advise the government to undertake positive steps to assure those fearing ‘power grab’. It may even recommend the establishment of a committee of relevant experts that periodically reviews whether the country is ready for election lest this is completely left to the executive and the electoral commission that is still struggling to earn the trust of all political parties. After all, the fear of many political parties is not the postponement of the election, but that postponement might be longer than required.
Second, it must suggest safeguards to ensure that the incumbent does not, in the meantime, abuse state institutions to develop unfair electoral advantages over challengers. This may include advising government and others not to make certain decisions or engage in certain activities. It may even go further and indicate what may be regarded as unacceptable conduct or activity. In the event that the House advises that parliamentary terms cannot be extended and that the incumbent can no longer stay in power after the expiry of its term in October, it must offer advice on how the country should be governed and help the country avert the looming threat over the constitutional order.
Our constitutional moment
The excitement and level of public interest that this constitutional debate and indeed the ensuing constitutional interpretation process triggered is not misplaced. If anything, it can be considered to be a form of public recognition that Ethiopia is in a historic constitutional moment the weight of which should not be lost particularly by the bodies entrusted with the task of shouldering the unique responsibility the moment demands. It is our hope that they will not be found to be wanting. AS
[i] The other circumstance in which parliament can be dissolved is when coalitions break. But that is not relevant in this case.
[ii] Proclamation No. 251/2001 Consolidation of the House of Federation and the definition of its powers and responsibilities.
[iii] The Minutes of the Constitutional Assembly NO.28 from Hidar 21, 1987 E.C
[iv] Article 3/2/c, Proclamation 798/2013.