Adem Kassie Abebe @AdamAbebe
Addis Abeba, April 14/2020 – The COVID-19 Pandemic has its first electoral casualty in Africa after Ethiopia announced the indefinite postponement of preparations for general elections for members of the House of Peoples’ Representatives (parliament) and Regional Legislative Councils, originally slotted for 29 August 2020.
Ethiopia’s 2020 elections are expected to be the most free, fair and competitive since the ill-fated 2005 elections, which ended with a post-election violence, the detention or exile of opposition leaders and journalists, and overall cementing of authoritarianism.
There is hope, but also anxiety that the 2020 elections may similarly herald in a combination of authoritarianism and worsening of lawlessness and instability.
A welcome postponement
Even before the COVID-19 pandemic hit, the timing of the Ethiopian elections was more a consequence of a constitutionally fixed five-year parliamentary term than its appropriateness. The constitutional term of the current Parliament ends in September 2020, which necessitated the holding of elections latest by August.
The August date fell in the middle of the rainy season in large swathes of the country. This meant that the reconstituted National Electoral Board of Ethiopia (NEBE) needed to pursue preparations, all aspects of which have to be undertaken from scratch under a new electoral regime, amid disruptive rains. In a country with close to 80% rural population and only a small fraction of all-season roads, this was a herculean task even under the best of circumstances.
Crucially, the timing would have been detrimental to the preparations of opposition parties that have suffered years of political oppression. These parties not only need to comply with new registration requirements, they must also develop and promote their political platforms, recruit and train members, and establish constituency presence.
Many opposition parties, therefore, opposed the August date, which clearly advantaged incumbent Prime Minister Abiy Ahmed and his newly minted Prosperity Party, in view of their control of the state apparatus and resources. The August date could have seriously undermined the free and fairness of the elections, and therefore the legitimacy of the outcome.
When the COVID-19 Pandemic landed in Ethiopia, and restrictions were imposed by both the federal and some regional governments, NEBE’s preparations were brought to a halt. It therefore quickly convened consultations with representatives of political parties to update them on the developments, the various scenarios and the potential need for postponement, which was broadly supported.
This welcome postponement, however, generates thorny issues regarding its constitutional and legal basis and, crucially, the governance of the country between the end of term of the current parliament (and government) in September and the date of the next elections, which is yet to be determined.
Lack of constitutional regulation
While the broad political consensus and demands of a free and fair election may confer legitimacy on the postponement, it cannot be used to dispense with constitutional legality.
Neither the constitution nor other laws anticipate and regulate the possible delay of the fixed elections for parliament. It is thus not clear which entity, if at all, can postpone elections and under what circumstances.
Local elections, which are not constitutionally regulated, have been controversially and repeatedly postponed through the decision of parliament, not NEBE. NEBE cannot therefore postpone the general elections and its announcement suspending preparation for the elections should be seen as an input for the ultimate decision on the fate of the date of elections.
Short of a constitutional amendment, which is practically off the table, the only possible justification for postponement of elections appears to be as part of measures in a state of emergency. While dissolution of parliament offers another possibility, this is anticipated in relation to the early, not delayed, holding of elections.
There have been suggestions that the declaration of a state of emergency merely to justify postponement of elections is inappropriate and sets a dangerous precedent. While the conclusion of this sentiment is agreeable, the premise is not.
Elections are not a one-day event. They are a cyclical process that require continuous preparations. In the Ethiopian case, the upcoming elections are for all practical purposes an inaugural election under a reconstituted NEBE and new electoral regulations, including for registration of political parties.
The COVID-19 Pandemic has disrupted preparations for elections, as much as normal livelihood. Accordingly, while there may be differences on the appropriate measures that may be taken in a state of emergency, there is no denying that an emergency exists. Although this emergency would hopefully end before the formal end of the term of the current parliament, the damage to the election preparations has already been done and postponement of the elections is a necessity, not merely a convenience.
The state of emergency declared on 8 April by the Council of Minsters does not outline any specific measures, instead allowing the executive to flexibly determine the needed measures. Nevertheless, while the details indeed require swift and adaptive responses that the Parliament cannot readily provide, considering the importance of the elections, the decision on postponement should be taken by the Parliament, rather than be left to the government.
Unfortunately, Parliament approved the emergency declaration on 10 April without any measures related to the postponement of the elections. The detailed measures that the Council of Ministers subsequently announced do not similarly mention the elephant in the room. If the deferral of decision on the election issue is intended to strengthen cross-party engagement and consensus, including on governance in the interregnum, this must be communicated clearly. Otherwise, avoiding the issue only opens room for unproductive contestations.
Governing in the interregnum
Whatever the constitutional contestations, postponement of the elections is a practical reality. A more valuable and productive debate would be to focus on how the country should be governed between the end of term of the current parliament in September 2020 and the new date of elections, which under a NEBE proposal could be as late as February 2021, assuming the COVID-19 pandemic will be under control sooner rather than later.
The absence of regulation on the possible postponement of general elections means that we are in the dark as to the modality of governance in the interregnum. If experience from the postponement of local elections is anything to go by, things would proceed business as usual, i.e. the ruling parties at the federal and regional levels will continue to exercise full government powers. The ruling parties will likely seek to follow this path. The emergency declaration postponing elections may also be seen as concomitantly extending the life of the current parliament and government.
Nevertheless, considering the legitimacy deficit in the current parliament and government, resulting from the unfree, unfair and uncompetitive 2015 elections, insistence on business as usual would be unadvisable.
Another possibility is the establishment of a caretaker government. While the Constitution does not expressly provide for it, caretaker government has been recognized in relevant rules and regulations of the parliament in relation to early elections, where parliament is dissolved with its own consent or for failure to establish a replacement government following a successful vote of no confidence in a coalition government.
In such cases, elections must be held within six months of the dissolution and in the interim the government would conduct day to day governance and ensure the organization of new elections, but it may not enact new proclamations, regulations or decrees, nor may it repeal or amend any existing law.
Nevertheless, a care-taker government assumes the absence of parliament and would be inappropriate in cases where parliament is still functioning. In any case, the aftermath of the emergency will require swift policy responses as well as continental and global cooperation to contain the damage to the Ethiopian economy. A caretaker government would not be fit for purpose.
Toward a ‘consultative’ government
It is suggested that Ethiopia should move towards a consultative government for the interregnum where the government would continue governing but must formally convene and consult leaders of opposition parties on key policy decisions that may be necessary during the interregnum.
In this regard, the consultations that NEBE conducted with political groups prior to announcing the suspension of preparations for the elections and cancelling of the electoral timeline, as well as the consultations that Prime Minister Abiy Ahmed conducted with leaders of opposition political parties provide a useful foundation to build upon. The proposed consultative government would strengthen what has been started.
In addition to providing a viable way out of the constitutional and legal conundrum, the practice of consultative government during the interregnum could engender a more collegial and cooperative spirit among the political contenders. Such a spirit is critical to reduce the chances of post-electoral instability and violence and resurgent authoritarianism.
It must be noted that the parliamentary appointment of the seven members of the State of Emergency Inquiry Board, which is the key accountability mechanism for the duration of the emergency, has been done in a rush, including only members of parliament and ruling party, and apparently without consultation with opposition groups. Such exclusive approach contradicts the consultative governance model espoused in this piece as necessary for laying the foundations for genuine balance between democratic competition and cooperation.
The proposed consultative government must not be confused with a transitional unity government, which would require opposition groups formally taking up government positions. This has been rejected by the government. In any case, negotiations and preparations to form such a government would probably take more time than the duration of the interregnum.
Finally, while the main focus of this piece has been on the federal government, all the issues and solutions proposed also apply to regional governments. AS