Analysis: Deferred election, state of emergency and #COVID19 – How can Ethiopia avoid an impending constitutional crisis?

Bantayehu Demlie,@BantayehuD

Addis Abeba, April 10/2020 – On March 31, the National Electoral Board of Ethiopia (NEBE) announced their decision to cancel the electoral calendar and operational plan for the much-anticipated August 29 elections, citing the ongoing and expected impacts of the COVID-19 pandemic. On April 8, Ethiopia announced a five-month state of emergency due to the pandemic.

On the other hand, the current Parliament’s five-year term will expire in six months. The FDRE Constitution requires new Members of Parliament (MPs) to be elected a month prior to the expiry of the existing House’s tenure (Article 58 (2)). A newly elected House is supposed to convene by the final week of the Ethiopian month of Meskerem (September), which will be on October 5 this year. There are no stated exceptions to parliamentary term limit.

With scheduled elections now postponed, compounded by COVID-19 uncertainties, it would mean that the tenure of current MPs would expire before being replaced by their elected successors. This will create a constitutional vacuum, which may lead to a constitutional crisis unless addressed promptly.

There is a dearth of insights on how to fill the loophole. Few legal experts are tapping into options such as a consensual dissolution of the Parliament by the Prime Minister and a state of emergency decree. While some allude to the possibility of a political settlement, this opinion piece is restricted to assessing possible options (those already suggested and new ones) from a constitutional/legal perspective.

Dissolving the Parliament

The Constitution (under Article 60) envisages two scenarios where an incumbent Parliament may be dissolved and new elections held within six months of the House’s dissolution. The first is where the Prime Minister – with support/consent from MPs – dissolves the Parliament “before the expiry of its term in order to hold new elections.” The second is where a ruling coalition of political parties breaks up and fails to maintain a majority in the House. The second one is not worth further consideration here as the ruling party maintains an overwhelming majority.

If the Prime Minister dissolves the Parliament, the Constitution requires the ruling party/coalition to continue as a caretaker government with a mandate of conducting the day-to-day affairs of government and organizing new elections, but without the power to enact new proclamations, regulations or decrees, nor to repeal or amend any existing laws. Those who suggest this option also admit its limitations. The six-month caretaker government will not have full powers, at a period of time when we need more government, not less. There is also a fear that invoking this provision may set a bad precedent for politically motivated dissolution of Parliament in the future.

In my view, the option of dissolving the Parliament – let alone its inherent limitations – is not applicable at all to dissolve a parliament whose term is expiring soon for two reasons. Firstly, it clear that the Prime Minister needs the approval of MPs to dissolve the Parliament. What if MPs refuse to support the Prime Minister? Their term will anyway expire by law and shortly. The Constitution does not therefore seem to presume a Parliament nearing expiry. Secondly, the Constitution stipulates that the purpose of dissolving the Parliament is “to hold new elections.” The case at hand is not about holding fresh elections but of elections whose constitutional schedule has expired. Taken together, dissolving the Parliament is intended to be used as a tool for organizing snap elections that are called earlier than their official schedule, instead of already postponed elections.

A State of Emergency

The other option that has been suggested is declaring a state of emergency, in accordance with Article 93 of the Constitution. Now that a five-month COVID-19 control state of emergency is in place through early September, this means extending it until elections are organized i.e., even if the pandemic is over by then. It could also mean declaring a new state of emergency, this time for the purpose of governing the country until next elections. Those who argue in favor of a state of emergency option mention several of its merits, including that the full powers of the Government (legislative, executives, etc.) will remain intact.

But is it in the Constitution’s spirit for a state of emergency to be decreed merely to organize delayed elections, or even for justifiable reasons listed under the Constitution such as a pandemic but covering a period where there is no valid Parliament? If we closely examine the relevant constitutional provisions, a state of emergency is not a suitable option, and if opted, will lead to further complications.

Firstly, the Parliament that approved the emergency decree may expire before the end of the emergency period. A state of emergency may not legitimize the extension of term limits of MPs. The Constitution seems to presume a parliament with a valid term, as it requires any subsequent renewals of the emergency decree to be approved by MPs and follow up or parliamentary oversight of emergency measures through an Inquiry Board. The Constitution does not have provisions governing situations where the term of the Parliament expires in the midst of an ongoing state of emergency.

Secondly, although some may contend that a state of emergency could suspend certain constitutional provisions (including parliamentary term limits) until the exigencies causing the emergency come to an end, I argue that this is nevertheless problematic. No state of emergency will be declared solely because elections are postponed beyond their constitutional schedule. It is simply not among the reasons that justify a state of emergency under Article 93. Therefore, even if the current COVID19-necessitated state of emergency is extended beyond September, it will expire when the pandemic is over. That moment the term limit of MPs (arguably extended by the emergency) will expire. There will thus still remain a constitutional vacuum until elections finally take place. On the other hand, any elections held before the expiry of the state of emergency will suffer from a legitimacy deficit.

What other alternatives then?

Constitutional amendment

Given the risks of unconstitutionality in the two options mentioned above, the safest approach, although not ideal, is to amend the Constitution. Procedures for amendment of the Constitution are stated in articles 104 and 105. Only provisions of Chapter Three (human rights and freedoms) and the amendment provisions themselves (104 and 105) require a more stringent procedure requiring, among others, the approval of all of the nine regional states through their councils. All other provisions (including those stipulating parliamentary term limits and state of emergency) require relatively less stringent amendment procedures (i.e., two-thirds majority approval by a joint session of the two houses of the Federal Parliament, and approval by six of the nine states through their councils).

Which provision has to be amended? Any of the articles implicated in the discussion so far (those governing parliamentary dissolution, parliamentary term limits, state of emergency) could potentially be amended. Yet the most plausible provision to amend is Article 58 (3), which states, “The House of Peoples’ Representatives shall be elected for a term of five years. Elections for a new House shall be concluded one month prior to the expiry of the House’s term.” The proposed amendment may insert exceptions where under unforeseeable extraordinary conditions (force majeure) elections may be delayed up to a stated period. As this provision falls within the second category of provisions requiring less stringent amendment procedure, securing the approval of six out of nine regional states and two-thirds majority of a joint session of the houses of the Federal Parliament is relatively easily attainable. The peculiar merit of this alternative is that it will allow flexibility to extend/declare COVID-19 related emergency as necessary – without a need to worry about the schedule for elections, which will separately be governed by a new constitutional provision.

This approach has its own demerits. The restrictions applied for the COVID-19 response may limit opportunities for public consultations required under Article 104. In addition, it may set a bad precedent of last minute amendment of constitutional provisions – and in particular those that stipulate term limits for elected office. However, bad precedent is also a risk in other options and seems to be unavoidable anyway. The downsides of this approach do not however carry the risk of illegality/unconstitutionality.

Constitutional interpretation

Not least of all, there is a need for the House of the Federation – the upper house of the Federal Parliament – to step up and provide constitutional interpretation. The House is mandated by the Constitution (Article 83) to provide authoritative interpretation of constitutional issues. As noted above, any avenues within the existing constitutional framework (i.e. excluding the amendment option) have their own imperfections and could subsequently be disputed. The House may thus sooner or latter face the challenge of adjudicating possible constitutional disputes.

It has to be noted that constitutional interpretation is not a separate and independent option in and of itself. It is suggested here to complement the legal/constitutional inadequacies of any options resorted to under the existing constitutional framework – in particular dissolving the Parliament and declaring/extending a state of emergency. Authoritative interpretation is needed to confirm or otherwise these two questions in particular: Can the Prime Minister under Article 60 cause the dissolution of the House of Peoples’ Representatives for purposes other than holding snap elections? Does the tenure of the House of Peoples’ Representatives extend beyond expiry of its term if the expiry comes in the midst of a state of emergency that it approved? Interpretation adopted by the House of the Federation may have the effect of slightly modifying the Constitution. That is still legal as the mandate is constitutional. The House of the Federation should be time-sensitive since its own term expires at the same time as that of the lower house.

In conclusion, there is no perfect option and quick fix to address an impeding legal vacuum that may be created by the postponement of elections beyond their constitutional schedule, and is complicated by the exigencies of the COVID-19 pandemic. Amending the Constitution to extend the current Parliament under extraordinary and strict conditions is the least of all possible evils. Other options (dissolving the Parliament and extending/declaring a state of emergency) should be backed by an authoritative constitutional interpretation by the House of the Federation. AS

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Editor’s Note: The author holds LL.M. from American University Washington College of Law, and has previously taught courses including Electoral Law at Addis Abeba University School of Law. He can be reached via ban.demlie@gmail.com and tweets @BantayehuD. Views are expressed in personal capacity only.