Op-Ed: Constitutional based national dialogue the best way to avert a constitutional crisis triggered by deferred election

Solomon A. Dersso (PhD) @SolomonADersso

Addis Abeba, April 30/2020 – Yesterday 29 April, Prime Minister Abiy Ahmed held a consultation with representatives of various opposition parties on the question of the much anticipated election initially expected to be held in August 2020 but had to be postponed due to the COVID19 pandemic. The postponement of the election in a context in which the constitutional term of the current parliament and the incumbent would come to an end has given rise to a major constitutional conundrum. 

The consultation by PM Abiy Ahmed is a politically wise move deserving of commendation. Indeed, this move has been one of the options proposed by various observers, including international think tanks such as ICG. As such it is an excellent beginning of a supremely valuable national exercise.

But while this consultation is necessary and valuable, it is not sufficient to address and settle the constitutional conundrum facing the country. First, beyond their jockeying for power, it is not yet empirically clear how ready and useful political parties are for the Ethiopian public. The fact that these parties have never been heard and that they seemed to have been frozen by the pandemic is very odd, raising many questions about whether these parties know and understand why they are competing for power. This may be a bit of diversion, but not by huge margin. COVID-19 and how it is addressed is not just about public health science, it is also equally about policy choices, which are essentially political and hence a subject of discussion and political debate among contending political parties. Clearly, our political parties have not passed this test, yet.

Even if our political parties were effective and up to the task and are able to meaningfully engage and show to the public their capacity for addressing pressing policy issues such as the state of our health system and the mechanisms for coping with the consequences of health crisis like COVID-19, they are not the only and primary actors with vested interest about how this constitutional conundrum needs to be solved. They are only first among many other equally important interested stakeholders. 

At stake is not simply the interest of political parties for a share of political power but importantly the right of Ethiopians to the exercise of their fundamental right to self-determination, which is exercised through the ballot. It is this core right of citizens that is at stake. In the context of our constitutional and political system, it is this core right of the various ethno-cultural groups who are under the constitution vested with political rights both at regional and federal levels. 

That is why yesterday’s consultation should be taken as just the beginning, only the start of a profoundly important national exercise. 

Four options were presented the Deputy Attorney General Dr. Gedion Timotiwos as the government’s alternative to navigate through this constitutional conundrum: Dissolving the Parliament; Declaring a State of Emergency; Amending the Constitution; and seeking Constitutional Interpretations. It is not immediately clear if these options were presented as being mutually exclusive. My submission is that there is no reason why they should be mutually exclusive. 

The issue we are facing as a country are both a constitutional matter, hence requiring a constitutional process, and an extension also of the political context of the country, which has been crying for a political process, hence the importance of the start of this consultation. 

There have been various insightful commentaries, most notably on Addis Standard, on the merits and otherwise of all of these options. (See here, here, here, here and here.)

In evaluating any of these options, of course we need to be upfront about our approach and methodology. This is key for assessing the logic and validity of our assessment. One of these methodological issue very fundamental to how we assess each of these options is whether we consider the issue to be essentially a constitutional matter, requiring constitutional resolution. 

Our approach to and application of the Constitution should not be a matter of convenience, a matter of political expediency and a matter of our political preferences. The constitution and a legal approach is a necessity – it guarantees constitutional legitimacy and legality and it frees us from decision-making on fundamental constitutional issues by considerations principally of power dynamics, and the arbitrariness of the political heat of a particular transient moment in the life of a country with long term consequences. 

Let us turn our attention back to the options. 

The first option, as Adem Kebede rightly pointed out, applies when a situation that necessitates to shorten the five years term of parliament arises and there is agreement for cutting the term of parliament short and going for a new election. That is the scenario envisaged in Art 60. 

What we have on our hands is not a case in which there is still long time left for the end of the term of parliament. It is not a case in which a need arose for ending the current parliament before its term ended and for having a new parliament. What we have rather is a case of the coming to the end of the term of the current parliament within short period of time. 

We have to recall that this constitutional conundrum arose from the cancellation of the planned elections which was necessitated by the COVID-19 emergency. The State of Emergency will subsist for five months, making the option of Art 60, which requires the convening of the elections within six months, a near impossibility. As various commentators also observed, the nature of the power required to be exercised during this time of emergency is not one that a care taker government is in a position to legally possess and can constitutionally exercise. The power to be exercised during this state of public emergency is far bigger than not only the limited scope of the power of a care taker government but also is even far wider than the power that a duly constituted government exercises in normal times. 

The second option is declaration of a state of emergency – on this the idea is that due to the prevailing public health pandemic, the Government and Parliament invoke Art 93 of the Constitution, which legitimately allows postponement of the election time based on constitutionally stipulated grounds – the necessity of protecting the health and life of the public. 

Certainly, as Zemelak Aytenew observed whether a state of emergency can also be used for extending the term of office of parliament and the executive is a major issue on its own relating to what happens if the state of emergency does not end before the end of the term of parliament. 

As he argued, “one cannot assume that the framers of the Constitution anticipated that what causes the declaration of SoE will always come to an end before the end of the term of a parliament. We can assume that they envisioned that the cause for a declaration of a SoE, which also can be a cause for suspending elections, would persist after the end of the term of a parliament which endorsed the SoE.”

According to Zemelak therefore we can consider “that the framers of the Constitution anticipated that the Council of Minister that declared the SoE and Parliament that endorsed the SoE will continue their functions until the cause of the SoE comes to an end and elections are held.”

It can be seen as an auto-legitimizing framework for what could actually be a prolongation of the term of office, hence overstaying the constitutional welcome of the parliament and government. These being the entities with direct interest and them deciding on a state of emergency would become the decision-makers on the matters directly concern them. This also has the air of being a politically expedient option, although in strict constitutional terms is not without validity. 

What is crucial in Zemelak’s argument is the profound point that the framers of the Constitution did not envisage a power vacuum to arise. This is a very perceptive thought and directly invites constitutional interpretation, thereby implicating the role of the body responsible for constitutional interpretation (to which we will come back later as it is the last option to be considered.) 

The third option is constitutional amendment to clarify this dilemma. This has the appearance of being simple and addresses the constitutionality issue arising from the pressure of time. This is an ideal solution. As an ideal solution, it depends for its successful execution on the existence of ideal conditions that makes it possible. But do we have these ideal conditions in Ethiopia? There is nothing to indicate that we have these ideal conditions. Indeed, we are operating in a highly volatile political context and even more compounding public health emergency. 

Also not clear if the requirements for the process of amendment would be met. This is because a question may arise on whether the amendment is required and concerns only provisions of the Charter outside Chapter 3 of the Constitution or whether indeed the issue touches not only of the individual right to vote but also some of the group rights under Chapter 3 of the Constitution. If the answer to this question is affirmative, then it is far from clear if indeed the requirements of Article 105 (1) can be secured. 

There is also the issue of opening the Pandora’s box. signs of this have already emerged and hence making this option less viable and riskier. One political party, Amhara National Movement, has suggested that the option for constitutional amendment should cover not only this narrow issue but also many other parts of the Constitution, which entail not just an amendment of the constitution but it’s total overhauling. To say that this is profoundly problematic is quite an understatement. 

Add to the mix, the fact that there are regional constitutions that also stipulate that the term of the regional councils is five years. Would the avenue of constitutional amendment also apply to amendment of sub-national constitutions? How feasible is that in the absence of consensus among all political and social forces of the country? 

Finally, we come to the fourth and last option, referring this matter for constitutional interpretation. From all the options thus far this option seems to be the one to which constitutionally speaking we should resort to. First, there is no question or doubt that this matter is a constitutional matter. The reason why bodies with mandate of constitutional interpretation exist is to deal with constitutional matters such as this one. Certainly, we can have misgivings about whether our model of constitutional interpretation is satisfactory. But that is unfortunately an extra constitutional debate, a profoundly important one at that. If we therefore for a moment put aside our preferences about this and simply follow the constitutionally laid down process (which we should not abandon simply because we would have preferred to have a judicial review model of constitutional interpretation similar to Supreme Court of Kenya or Constitutional Court of South Africa), then the Constitution demands us that this matter is indeed brought before the HOF. Even with respect to the application of the other options such as the state of emergency option, it is necessary to have constitutional interpretation that may affirm that the framers of the Constitution could not be considered as having envisaged the emergence of a power vacuum and as such, the current parliament and government may continue to oversee the state of emergency and create conditions for holding of meetings and elections. In doing this, of course the HOF is expected to lay down parameters for the exercise of authority by parliament and the executive during this extended period. 

Yet this option of going to the HoF on its own would not be enough. This is particularly so because this issue is not simply a constitutional matter but it is also a highly political matter, hence requiring a political process that complements the constitutional one.

Indeed, one of the requirements that the HoF, in providing its constitutional interpretation and the parameters for governing during this extended period, could lay down is for the government to operate on the basis of deliberative, consultative and participatory arrangements that mobilize national consensus. This can be done, as the South African Constitutional Court outlined in its judgements relating to deliberative democracy required by the South African Constitution, via establishing transparent and genuinely participatory consultative platforms on policy issues that concern various sectors of society. This consultative process is also key to address the political legitimacy dimension of the question that is inevitable and has already risen. The HoF can build on the commendable initiative of PM Abiy’s consultation with the opposition in laying down this requirement of consultative and deliberative form of governance. 

As noted at the beginning of this op-ed, this matter is a constitutional matter, as such it is a whole of society issue. Politically as well, political parties in their current form represent only a very narrow interest of the elites leading those parties and jockeying for power and are with limited policy weight. This means that this crucial national issue should be discussed not only with political parties but also with other sectors of society including representatives of women organizations, representatives of the nine regions and the two city councils, trade unions, businesses, daily laborers, farmers, persons with disabilities, pastoralists, professional associations, the intelligentsia, and the youth. This would not only bring onboard the diverse political and social forces of the country but also infuse a much needed cross sectional legitimacy to the process.

The combination of constitutional interpretation via the HoF and the expansion of the consultation that PM Abiy initiated to go beyond opposition political parties offer Ethiopia the most constitutionally sound and politically solid way out of its current constitutional and associated political conundrum. Also, this is too important a matter to be left to be decided by the entities with the most vested interest in this, namely parliament itself. Opting for this approach is not just a matter of legal and political nicety. Indeed, it could actually be what the stability and success of this transition would depend on. AS

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Editor’s Note: Solomon A. Dersso (PhD), currently serving as the Chairperson of the African Commission on Human and Peoples’ Rights, is founding director of Amani Africa. He also serves as Adjunct Professor at College of Law and Governance Studies, Addis Abeba University.

This op:ed reflects the personal opinion of the author and the views expressed are not attributable to any of the institutions to which the author is affiliated.