Opinion: Ethiopia’s impending constitutional crisis and why we need a political solution

Jawar Mohammed, @Jawar_Mohammed

Addis Abeba, May 03/2020 – On March 30 the National Electoral Board of Ethiopia (NEBE) has announced that it would not be in a position to conduct the national and regional elections scheduled for August 20 this year due to the COVID-19 pandemic. On April 30 the House of People Representatives has approved NEBE’s decision and referred the matter to the House’s pertinent standing committee for further deliberations. Meanwhile, the five year term of the federal and regional legislatures as well as administrations will expire on September 30, which means that the ruling Prosperity Party (PP) will no longer be constitutionally mandated to govern beyond September.

This brings about a unique challenge. Beyond September 30, who will have the mandate to govern until such time that Ethiopians are able to go to the polls to elect their own government?

The government has forwarded four possible solutions to figure out a way out of this constitutional crisis: Dissolving the Parliament; Declaring a State of Emergency; Amending the Constitution; and seeking Constitutional Interpretations. I will briefly make a case for why I found all four of these options are defective and then propose alternative approach.

By the government’s explanation, the first option is to dissolve the current parliament in accordance with Article 60 of the constitution and to hold a new election within six months. However, this article mainly pertains to a situation where a coalition government breaks down due to differences between political parties, which leads to the loss of majority in parliament. In such circumstances, the constitution does grant the Prime Minister the power to disband parliament and call for a new election. However, as specifically stated in sub article 1 of Article 60, this can only happen within the five year term limit of the Prime Minister or the Parliament, and cannot be used as an instrument to willfully extend the mandate of a government whose term has expired. 

The second option is declaring a state of emergency until a formal government takes over the reigns of power following by an election. Article 93 of the constitution allows the government to declare of a state of emergency should there be, among others, an epidemic (pandemic) which would pose a major threat to public health. Nonetheless, to begin with this can only be considered once it’s determined in September that the pandemic hasn’t been put under control and that there is a need to prolong the decree. Secondly, even if the the State of Emergency is prolonged in September, it cannot be viewed as an extension of the mandate of the current government past the 30^th of September. The obligation to oversee the proper implementation of the decree and to protect public health in the event that the pandemic is still active will fall on a new caretaker body which will replace the current government. 

The third proposal tabled for discussion is constitutional amendment. Article 54 of Ethiopia’s constitution stipulates that members of parliament shall be elected for a term of five years and the plan in this proposal is to amend this provision if members of parliament and the house of federation jointly approve the amendment by a two-thirds majority vote; and if two-third of regional state councils endorse the proposed amendment by majority votes. This proposal, if applied at this time, will create a legitimacy crisis given that the incumbent holds 100% of the seats in the federal and regional legislatures, not to mention the fact that this was made possible by the sham election of 2015. For anyone to suggest that the parliament, the house of federation and the regional councils which are fully controlled by the incumbent should decide on whether the current term of government should be extended or not is tantamount to saying the entire process should be exclusively left for the ruling Party. This is a matter of huge significance to be left for a single political entity which in all likelihood will pull out all the stops to prolong its hold on power. This exercise will lose legitimacy from the get go as it relegates political parties and other stakeholders to the status of mere observers. The extension of a term of office using such provisions is a common practice in autocratic states, and it’s not acceptable for this government to go down that route. It will be yet again another demonstration that the government has reneged on its promise to democratize the state. Not to mention the impossibilities of conducting expensive public consultations and deliberations, as required by the constitution.

The fourth and final option the government is exploring is seeking constitutional interpretation. The constitution does provide the House of the Federation (HoF) the power to interpret the constitution but this option will only lead to a dead end for two reasons.

Firstly, the HoF can only interpret in an attempt to seek clarifications on what is written in the constitution. The constitution does not have provisions pertaining to the postponement of elections compounded by a global pandemic. In other words, there is no article in the constitution dealing with election postponement which has been disputed in a court of law. In the absence of such disputed articles, intervention of the House Federation is tantamount to writing a law rather than interpreting it.  The reason such provisions were not included in the constitution is to restrain the party with a majority in parliament from exploiting such provisions to extend its term when it finds it convenient.

Secondly, if, for the sake of argument, we agreed to proceed with this option, it means that it will go to the HoF which is fully controlled by the incumbent. Again, this causes a legitimacy crisis and cannot be considered acceptable and fair by all other stakeholders.   

Having carefully considered all the four proposals forwarded by the government, I have found all of them to be either inapplicable or deficient in terms of legitimacy to address the impending constitutional crisis we are facing as a result of the COVID-19 pandemic. I have read the ongoing debate by legal experts on the matter, too, and even those who endorse the position taken by the government admit that pursuing the constitutional mechanism alone is insufficient to provide the necessary legitimacy unless it is backed by political consensus. 

The solution therefore is more of political rather than constitutional. None of the provisions in the constitution, however much they are stretched for convenient interpretation, allow for the extension of the incumbent’s mandate beyond September. The decision on the date of the national elections and the type of provisional administration we will have in the interim period between September and election time should only be made after proper dialogue and agreement with all political parties and concerned stakeholders including civil society organizations. Anything less is unacceptable. As it stands, there will not be a government with a constitutional mandate to govern past September 30.

What do I mean by political solution?

The starting point would be to ask what the constitution is. It is a document that contains a set of principles that citizens of a country have agreed to be governed by. These principles define the horizontal relationship among individuals and groups as well as vertically between individuals/ groups and the government. In other words it specifies duties, rights and obligations of both the state and citizens. These sets of  principle contained in the constitution are developed after thorough deliberations, discussions and debates among representatives of various political interests often assisted by experts. Participants of the deliberation are often elected by citizens to constitute a constitutional assembly. The agreed upon sets of principles are then tabled for further public discussion and approved in the form referendum. Upon approval it became the law of the land. Courts use the documents as guidance for judging disputes. In case a certain principle of the constitution needs further details to assist implementation, the legislative body devises proclamations and directives. If disputes arise on the interpretation of a certain principle contained in the document, a body created by that very constitution to review such disputes decides. In most countries this duty is vested in supreme courts and specially designated commissions. In Ethiopia, the power to interpret the constitution is vested in the upper House of the legislature, i.e. House of Federation’s Council of Constitutional Inquiry (CCI), which has the powers to investigate constitutional disputes. Whether it is the supreme court, or the CCI of the house of federation, they interpret disputed principles contained in the existing document. Then, what happens when a dispute arises over an issue that has not been dealt with in the constitution, as in the current case, where the constitution says nothing about postponing elections and extending the term of government?

The solution is to go back to the drawing board, i.e. develop an agreement on the disputed issue. To do so we should start by asking why the framers and negotiators who authored the current constitution did not include principles/ guidelines for extending elections and/ or terms of office.

In my opinion, there could be two possible answers. The first is they just did not imagine a scenario of a global pandemic which would lead elections to be postponed. Since countries hold elections even in the midst of a civil war, in the face of a foreign invasion or a natural disaster, it’s understandable that the authors of our constitution could not see any cause that would make holding an election an absolute impossibility. The second possibility is that they deliberately left it out to ensure that there was no loophole for aspiring dictators with majority seats, who could consider exploiting such gaps to extend their hold on power by postponing elections. Given the fact that many dictators cling to power by changing term limits, postponing or cancelling elections, the authors might have aimed to leave no room for such improper political tactics. There is evidence to support this possibility. In article 9(3) of the constitution it is clearly stated that “It is prohibited to assume state power in any manner other than that provided under the Constitution.” Hence, omitting any procedure that allows for postponement of regularly held elections and extension of term of limits, reinforces, the aim of this principle, prohibition of acquisition of power by any other means than strict periodic election. 

But now, given the COVID-19 pandemic that renders the holding of an election impossible, what should be done to legitimately postpone the election and avoid a power vacuum in the interim? The solution, in my view, is to reach at a new political agreement to ultimately address this new constitutional problems, which was unforeseen by its framers. This political agreement should outline issues such as when the elections should be held (not necessarily agreeing on a fixed date given the unpredictability of the public health challenge at hand), and what should be the nature of the interim government between expiry of the current term and the election. 

Who should sit for such deliberations?

Although there are many stakeholders to this matter, political parties eying  to contest the election (had it not been postponed) are the most appropriate ones. Hence, political parties legally registered and qualified to contest the now postponed election could deliberate, debate and bargain to reach at an agreement that serves during the interim period. This interim agreement expires once the country is able to hold an election and form a new government. The newly elected legislators could approve the interim agreement into law  if they see it fit or disregard it and come up with a remedy to fill the gap in the constitution on the postponement of the election. That is if they think it’s necessary. 

Who should take the initiative and lead such deliberation?

Such deliberation needs to be organized by an independent body with no direct partisan interest in the outcome of the process. The few discussions that took place so far were chaired by Prime Minister Abiy Ahmed. As President of the ruling Prosperity Party that has direct vested interest in the outcome, i.e. postponement of the election, the nature of the interim government and the results of the election afterwards, the Prime Minister obviously is not a suitable pick to lead the dialogue. This is abundantly clear from the discussion that has taken place so far. Simply put, the convener cannot be one of the contenders. Therefore, one alternative is to find a third party convener ( persons or organization) acceptable to all parties. If this is too difficult and if all stakeholders want to keep this within the existing government structure, they can pick an institution and leadership that are not directly affected by the matter under discussion.

The office of the President and the Supreme Court are the two main federal institutions that are not directly and immediately impacted by the election ( in current case  its postponement or extension of term office). The president of the republic and the supreme court are meant to be neutral/apolitical and not impacted by partisan politics. In particular the president is the head of state, who must vacate her/his seat in parliament if elected from there, to ensure he/she does not involve or take a partisan position in any matter. The president’s term of office is also longer than the legislative and executive to ensure continuity of government during election period. For instance it is the presidency that supervises the hand over of power from the outgoing government to the incoming one. For this reason, the president could not only convene and facilitate the deliberation but also oversee the implementation of the agreement and ensure adherence of all parties to it. In this task, the president could be joined by the supreme court president and assisted by technical experts.

In the absence of any constitutional direction on the postponement of elections and extension of term of office under such unique situation, reaching at a political agreement among all political parties via a deliberation convened by a legally nonpartisan body serves better purpose to give the process of election postponement the legitimacy both in the public eye and among rival political organizations. 

Finally a few  concluding points. First, no single party that I know of opposes the postponement of the election because there is a general understanding that the COVID-19 pandemic s is a grave public health threat that cannot be taken lightly. If there is a dispute it is on the mechanism used to postpone the election and on how to manage a potential power vacuum. Second, in addition to the constitutional crisis we are faced with, for an incumbent party that ruled for 29 years with an iron fist to extend its term by amending or interpreting the constitution using legislative bodies almost totally controlled by its own members, who acquired their seat through rigged election in the first place, does not provide an ounce of legitimacy.

If the ruling party refuses to negotiate with the opposition and other stakeholders and moves forward with extending its term in office, it amounts to illegal acquisition of power in violation of Article 9(3) of the constitution. No citizen or state institutions or foreign power would be expected to recognize such government as legitimate. And this would be very dangerous for the stability and national cohesion at the time when we need both most to effectively contain the spread COVID-19 and quickly recover from its socio-economic impacts. AS