Commentary: Constitutional Interpretation viable way but incomplete without necessary adjustments

Solomon A. Dersso (PhD) @SolomonADersso

Addis Abeba, May 05/2020 – Late last week I published an op-ed on the emerging constitutional and the associated but pre-existing political dilemma facing Ethiopia. Since the publication of my op ed, two friends I respect who are my contemporaries at law schools here & outside the country, Mamo Esmelealm (Advisor to the PM & Chief Trade Negotiator) and Abebe Abebayhu (Commissioner for Investment Commission), published two separate viewpoints on Ethiopia Insight and Addis Fortune respectively. Both of them made a strong case for why constitutional interpretation was the best of the other options.

Today, members of the House of People’s Representatives (HoPR) convened for the 3rd Special Meeting of the House and approved the Constitutional Interpretation alternative presented to the House by its Legal, Justice and Administration Affairs Standing Committee.

These can be considered as strong indications that the constitutional interpretation avenue is also the preferred option of people in government as well. Questions abound about whether and how this can be made to meet expectations of various sectors of society.

Following the publication of my op ed, I have seen and received many great feedback with some expressing strong disagreement that constitutional interpretation is the optimal option for addressing the constitutional conundrum arising from the postponement of the elections & the end of the term of the current parliament and government before elections were concluded within the timeline set in the Constitution. 

The concerns expressed regarding the use of this option to resolve the impending constitutional crisis raise valid points and deserve very serious consideration. My plan in this follow up commentary is both to consider them seriously and outline how the constitutional interpretation path can be and should be made to address these concerns. 

Before we move further, it is important to dispense with some preliminary issues at his stage. Do we face a constitutional crisis? If yes, is it not constitutionally required to address it through processes laid down in the Constitution? Is not constitutional interpretation via the Council of Constitutional Inquiry (CCI) and House of Federation (HoF) put in place to deal with situations such as this? Whether we can legitimately and legally resort to constitutional processes as a matter only of expediency?

The constitution stipulates that the term of office of the House of Peoples’ Representatives and the government formed by the majority party to be five years. It requires that national elections shall be concluded one month before the expiry of this five-year term. With the state of emergency and the unavoidable postponement of the election scheduled for August 2020, it has become impossible to meet the constitutional timeline. This gives rise to a constitutional crisis involving a vacuum of constitutionally and electorally mandated government arising from the expiry constitutional term limit of the current parliament and government. Since it cannot be assumed that the framers of the Constitution envisaged such a vacuum to arise in the ordinary course of constitutional rule, one of the ways for avoiding this vacuum is the extension of the term of office of the current parliament and the government. 

The question arising from this is whether parliament and the government decide for themselves or whether this has to be established on the basis of constitutional interpretation. If parliament and government decide the extension of their term of office for themselves, then this is auto legitimization whose constitutional legitimacy can be challenged. It can be argued that they are usurping power using the advantage of incumbency. This would go against Article 9(3) of the Constitution which clearly states that ‘It is prohibited to assume state power in any manner other than that provided under the Constitution’. 

If the two were to decide for themselves, it would also have been contrary to the division of power that the Constitution has put in place. The division of power outlined in the Constitution envisages that constitutional matters such as these are to be decided by the House of Federation (HoF) with the assistance of the Council of Constitutional Inquiry (CCI). 

One of the notions that we should accordingly disabuse ourselves from is that which says we can adopt an ala carte approach to the Constitution – thereby we can pick and choose what we like and we reject what we don’t like at our convenience. We cannot on the one hand question the HoF and on the other hand fully embrace parliament and government, all of which owe their constitutional legitimacy to the Constitution. 

Whether we like it or not and irrespective of our misgivings about the Constitution, it remains the only common point of reference to govern and guide the actions of both the bodies instituted under the Constitution and all other political and social forces as well as individual citizens (Article 9(2)). We should accordingly abide by it and operate within the parameters it has set until we get that opportunity to apply the ideal option of amending it to rectify its many flaws. 

Applying this legal logic to the emerging constitutional conundrum entails that it is constitutionally required that the matter is handled through constitutional interpretation.

This does not however dispense with the concerns that various sections of society and constitutional experts raise. What the constitutional requirement of handling the constitutional issue relating to Article 58(3) of the Constitution through constitutional interpretation give us is only the starting point in the quest to address this constitutional issue, hence the need to consider and address the concerns. 

One of these concerns is the fear that while the issue concerns all members of society and carries a political dimension, resorting to the HoF only leads to reducing it to just a technical legal matter and offers a purely legal solution to the problem. 

This is certainly a very valid concern. If indeed this is the approach to be adopted in applying the path of constitutional interpretation, it would prove to be utterly inadequate. It is true that ultimately a constitutional construction by its nature is a technical legal exercise. But given the dual nature of the matter as a constitutional-cum-political matter, the process of constitutional construction should have procedures that allow submissions and presentations by various sections of society and should be undertaken having due regard to the views and perspectives thus presented from the public. 

Accordingly, one of the avenues for addressing the concern about the reduction of the matter to a narrow technical legal analysis and answer is to adopt a more open and participatory requirement of legal standing, which allows various interested parties to be party to the proceedings. 

Related to the first concern is also the issue that Adem Kassie Abebe raised that the constitutional interpretation option would provide a single answer, which is not amenable to a more flexible political process. I agree with Adem that if this happens, it would not be a good outcome. As I hinted in my previous op ed however, it is not a must and in this instance it should not be the case that the constitutional interpretation option give us only a single inflexible answer that forecloses political negotiations. To the contrary, I argued then that apart from providing immediate answer to avoid the vacuum of constitutional government arising from the anticipated lapse of current parliament, the constitutional interpretation should also provide principles that require and guide national consultation/dialogue by involving others equally if not more important stakeholders. These are principles that set not only the framework on the format of governance in this interregnum necessitated by the coincidence of national emergency and end of term of government during the emergency and until elections are concluded after the expiry of the emergency period but also the agenda and principles on the amendment of the constitution for institutionalizing the democratization process during the initial phase of the term of the next parliament. 

The other concern raised with respect to the option of constitutional interpretation is that it is a process that is decidedly skewed in favor of the incumbent government and the party constituting it. Again, this is also a valid concern. In my book ‘Taking Ethno-cultural diversity seriously in constitutional design published in 2012, I have discussed in some detail how the Ethiopian Constitution has created a system of constitutional adjudication in which the members of the HoF, who are members of and accountable to the same political party that forms the majority in parliament, are made to make a determination of constitutionality on laws or actions of the legislature and executive that is controlled by the same party to which they are at the very least politically accountable.

Thus, it is legitimate that this concern is raised. This is a concern that once again should be addressed and hence processes that have the chance of traveling some distance in addressing this concern should be adopted. Only such adjustments would rescue the option of constitutional interpretation from this very legitimate criticism, hence legitimacy question. 

The question again is how such adjustments can be made. Here, it should be possible and fair to expect that, in addition to having a liberal approach to legal standing as argued for above to allow wider participation in the proceedings as parties to it, the decision of the HoF on the submission of the legal opinion of the CCI should not just be by majority vote but also can reject the legal opinion of the CCI only for compelling and legally reasoned causes, which should be made transparently in accordance with Article 12(1) of the Constitution. Accordingly, it should be established and accepted as such that the procedure that is adopted in applying the path of constitutional interpretation involves such clear stipulation. 

To further strengthen the public acceptance of this arrangement and as part of buttressing the legitimacy of the CCI, which can be considered as enjoying a level of legitimacy on account of being led by the President and Vice President of the Federal Supreme Court, it should also be possible to allow membership in the CCI of limited number of additional legal professionals regarded for their sense of professional independence. 

While as I argued earlier, I opt for constitutional interpretation as a way out of the impending constitutional crisis, this option can become most viable and commands the respect and support of various social and political forces of the country only if necessary adjustments able to meet public and constitutional expectations discussed above are made to it, which also both gives constitutional anchoring and facilitates the continuation and widening of national consultation/dialogue. AS

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.