Commentary: Ethiopia’s crisis induced opportunity to seize a historical constitutional moment

Solomon A. Dersso (PhD) @SolomonADersso

Addis Abeba, May 12/2020 – Depending on whether we seize the opportunity arising from it, this constitutional crisis could be a necessary trouble, a blessing in disguise, for Ethiopia. What determines whether a crisis leads to success or failure is not by how one escapes the challenges it presents but by how one uses the opportunities it brings with it. It is not different for the constitutional crisis facing Ethiopia.

As in every crisis, there is thus an opportunity that this crisis presents. But our capacity to recognize this opportunity and most importantly to seize it necessitates that we remove our partisan lenses, allow an expert driven and adjusted constitutional process and opt for a political process that assures a place for all in the management of the affairs of the country and nurtures a politics of accommodation and compromise over the zero sum politics of the flexing of political muscles by political actors. 

The opportunity for a historic constitutional moment

There are times in the life of a country that present a major constitutional moment for forging a national consensus bringing an end to a political polarization that creates the conditions for regular sparks of contestation and episodic eruption of violent confrontations. Despite all the uncertainties and the trading of accusatory exchanges among the contending political forces of the country it has created, the constitutional crisis in Ethiopia can also be a unique constitutional moment that can transform for better the trajectory of the political transition of the country. 

The submission of the constitutional issue to the Council of Constitutional Inquiry and House of Federation, the constitutional bodies responsible for constitutional interpretation, is indeed a major historic constitutional moment that should be seized with. There are two ways by which the current context presents such constitutional moment.

First, the constitutional crisis presents an opportunity for rectifying some of the limitations in the constitutional dispute adjudication system of the country and set a defining precedent for legally respected and more legitimate constitutional adjudication process, key for nurturing constitutionalism and rule of law. In a tweet announcing a call for constitutional law experts to make expert submissions to the Council of Constitutional Inquiry (CCI) tasked to consider the request from Parliament for constitutional interpretation in the face of the constitutional crisis, President of the Supreme Court, who also chairs the CCI, Meaza Ashenafi stated ‘Such participation is important to demonstrate to the public the integrity of the process and the outcome as well as to cultivate a positive tradition of constitutionalism in Ethiopia.’ 

Second, the current context avails a unique constitutional moment for achieving a national consensus that this country desperately needs and that has proved elusive during this transition. The sudden upsurge in the political temperature of the country and the zero-sum confrontation that has erupted is a manifestation of a lack of national consensus and dialogue-based settlement. This absence of a shared national consensus is sure to precipitate the eruption of political storm and even violent confrontation whenever some politically relevant development arises. This time around this politically relevant development which triggered the emergence of the current political contestation is the constitutional crisis arising from the inability of the country to hold elections within the time set by the Constitution. 

Seizing the opportunity from the constitutional interpretation process 

The reason why this constitutional moment is critical is not, despite but because of the flaws of our constitutional interpretation system. As noted in an earlier op-ed and pointed out by my peers in the legal fraternity, in entrusting constitutional adjudication to a body that is made up of people who are members of the ruling political party, lacking technical expertise in constitutional law and makes decision through majority decision as opposed to based principally on constitution based judicial reasoning and analysis, the Constitution has assigned constitutional interpretation to a body, as Yonatan Tesfaye put it, that ‘is not a competent, impartial, and suitable umpire that can police the Constitution.’ 

Given this institutional flaw of our system and given the historically important nature of this constitutional interpretation, the CCI and indeed the HoF face the unenviable challenge of rising to the occasion to overcome the limits of the constitutional design carving out a legitimate process and delivering a landmark constitutional jurisprudence that puts the constitutional and political trajectory of the country on a solid path. 

Admittedly, this is not an easy task at all. There are understandable widely held perceptions of crisis of legitimacy in our constitutional adjudication process. Certainly, while overcoming this fully can only be accomplished via constitutional amendment, enhancing the legitimacy of this process is not insurmountable either. It however requires the adoption of three adjustments I pointed out in my earlier piece. 

The first is what I call procedural adjustments/innovations. Ordinarily, it is a requirement of the principle of legal standing that only people whose interest is directly affected by a case can present a matter before a judicial process. If this requirement was to be applied to the current process, it would mean that only the House of People’s Representatives would have the legal standing to make submissions on the matter presented for constitutional interpretation. Such would be open to attacks for lacking legitimacy and being decidedly skewed in favor of the incumbent government. 

By adopting procedural adjustments, this major drawback of the process arising from the nature of the design of the country’s constitutional adjudication process can be significantly remedied. The procedural adjustments include the adoption of a liberal requirement of standing that allows any interested member of the public to make submissions. 

This adoption of a liberal approach to legal standing with respect to this case can be complemented by an amicus process whereby legal practitioners with expertise in the subject matter (in this instance constitutional law experts) are allowed to present expert and independent submissions as ‘friends of the Court’. The announcement by the President of the Supreme Court inviting constitutional experts is such a procedure. There is no better time than this for writing a new constitutional story for the country and for deploying the constitutional expertise of the country to this end than this. It is thus incumbent on those with constitutional law expertise to assume the responsibility this situation demands to use this opening for enabling the country write this new constitutional story. This opening should enable even those that have strong objection on the need for interpretation to make their case in a submission to the CCI. 

Clearly, this amicus procedure is no doubt very significant and a step in the right direction. But it is not enough. 

For the announcement of the President to achieve the objective, in her words, ‘to demonstrate to the public the integrity of the process and the outcome as well as to cultivate a positive tradition of constitutionalism in Ethiopia’, the procedural innovation has to go further. It in particular requires allowing other members of the public to make submissions to the CCI/HoF. Additionally, in accordance with the requirements of Article 12 of the Constitution, the process of submission and review of the submission should be conducted in an open hearing that is transmitted live to the public.

The second adjustment is structural. This has two aspects. The first dimension concerns the composition of CCI, which can be expanded with addition of limited number of independent legal professionals to further buttress its legitimacy. The second dimension should also include enhancing CCI’s role vis-a-vis HoF by limiting the latter’s review power such that it can REJECT the CCI’s proposal only on the basis of constitution based judicial reasoning and by a unanimous vote. 

The third is what I call substantive adjustment. This relates to not only the framing of the questions but also how the questions are approached. In terms of the question to be addressed, it is advisable to frame it in a way that go beyond inviting a narrow technical legal answer on extension of the term of office of parliament and government. It should be cast in a way that requires articulation of broader principles & parameters on ‘the how’ of decision-making during the additional time. Apart from the question on the merit of this constitutional matter, it is also crucial that questions of jurisdiction are also properly addressed. These questions relate to whether the term of office of parliament and government is a matter for constitutional interpretation by CCI/HoF and how and why it is necessary for the CCI/HoF to assume jurisdiction over this matter.  

In terms of how the questions are approached, it is necessary to recognize that this exercise is not just about the immediate question of overcoming the challenges that the current crisis presents but also about the landmark constitutional jurisprudence it can establish for putting the trajectory of the country on solid foundations for an inclusive, just and constitutionally sound system of governance. 

I am very much encouraged by the announcement of the President of the Supreme Court establishing the amicus procedure inviting constitutional experts to make expert submissions. It is a clear demonstration that we are in a different time in terms of our constitutional adjudication process. This is no small feat. President Meaza and her team deserve commendation. 

I also believe that this can be expanded and it needs to be expanded to also reflect the foregoing procedural, structural and substantive adjustments. These adjustments would guarantee this constitutional interpretation process to achieve its full potential not only in earning the confidence of the public across the political and social divide but also in achieving the potential of this constitutional moment to establish a landmark constitutional jurisprudence. 

Seizing the constitutional moment of the crisis by pursuing a path of forging national consensus 

While these adjustments undoubtedly expand the space for participation and infuse a huge amount of legitimacy into the constitutional interpretation process, this process would only travel part of the distance to enable the country fully utilize the opportunity to this historical constitutional moment. The constitutional interpretation process stands to contribute to the full realization of the opportunity from this historical constitutional moment both by giving constitutional anchoring and encouraging the continuation and widening of national consultation/dialogue. 

As many other Ethiopians with deep desire for the success of this transition in consummating the ideal of achieving a genuine democratic transformation pointed out, I have written on a number of occasions making a case for and outlining the necessity of anchoring the transition on forging a national consensus. 

In so many ways, the political settlement of the post 1991 political order of the country has clearly come to an end. While that settlement has been fraying for several years, the events that happened during the last months of 2017 & in early 2018 marked its demise. 

As has also been discussed variously, PM Abiy’s rise to the pinnacle of power also reflected the end also of the power alignment that dominated the political landscape of the country for over two decades. This change saw the end of the domination of the TPLF in the EPRDF and the emergence of the beginning of the end of the EPRDF. In Addition to the weakening of the EPRDF and its eventual breaking up, the opening of the political space that PM Abiy initiated paved the way for various political forces, including those that returned from exile and their foreign bases, to compete for a foothold in the political system.

As the transition has continued to unfold, the country finds itself in a condition of uncertainty arising from both the end of the post-1991 settlement and the lack of the forging of the new settlement. With the realignment of the power structure of the country still unfolding, the country also has witnessed recurring instances of political confrontations that on occasions led to violence that claimed the lives of people and displaced many from their homes. 

Although it is not uncommon to attribute the recurring instances of troubles the country encountered during the past two years to the widening of the political space in Ethiopia, that democratization is not the source of the problem cannot be overemphasized. The main challenge of the country lies in the lack of the emergence of a new settlement replacing the post-1991 political settlement that collapsed with the emergence of Abiy as the new leader of Ethiopia. The crises the transition has encountered are a result mainly of the fact that the democratization process is not founded on a national settlement. As pointed out earlier, this is also the source of the eruption of the current political confrontation, although the constitutional crisis is the trigger. 

Clearly, there is a need for filling the gaping vacuum resulting from the absence of the foregoing of a new national consensus replacing the old if Ethiopia is to avoid the episodic eruption of political storms whenever some politically important development arises.

Surely for this to happen the onus is on all the contending political forces in the Ethiopian political arena with the wider members of society bringing their weight in pushing these forces to assume their responsibilities to this end. 

On the one hand, there is a need for removing one of the major shambling blocks for achieving this. This has to do with the past, the past in particular of the EPRDF. An important but by no means the only aspect of this is, in the words of René Lefort, TPLF’s ‘rigidity and refusal to make a sincere assessment of its controversial rule’. This has made it difficult, if not impossible, for many to give the TPLF any benefit of doubt when speaking out even on matters of legitimate concern. Taking into account weight of responsibility for the past, the TPLF has to take the lead in engaging in such sincere assessment of its role for the wrongs of the past. It owes such ‘a sincere assessment of its controversial rule’ not only to enable itself and the country move forward but it also owes it to its past and future. 

On the other hand, there is a need to build on the initiative from PM Abiy of consulting with the opposition to have a wider dialogue and bargaining among the country’s political and social forces. This also requires flexibility and firm commitment for making concessions in exchange for recognition of the authority of the government. 

Ethiopia is at a major constitutional moment. This presents the country with a unique opportunity to use the constitutional interpretation process for establishing a landmark constitutional jurisprudence and to use the political contestation that the constitutional crisis triggered for resolving the major vacuum in the political process that has been unfolding during the last two years. Such a forging of a national consensus guarantees for various political forces a place in the management of the affairs of the country and nurtures a politics of accommodation and compromise key for institutionalizing the country’s democratization process in the place of the zero-sum politics and the accompanying political instability that the vacuum of lack of national consensus tends to perpetuate. 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.