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Commentary: How would the unelected assume state power constitutionally? The hard question the CCI/HOF need to address

Partial view of members of the House of Federation (HoF). Image: HoF archive

By Wondwossen Demissie Kassa

Addis Abeba, June 01/2020 – The country is waiting for the Council of Constitutional Inquiry (CCI) and House of Federation’s (HOF’s) decision on the consequence of the COVID-19 induced postponement of elections on the constitutional order.  In an earlier article I have argued that the CCI/HOF has to consider rejecting the referral for constitutional interpretation. In this article, I will be pointing to the hard question that needs the attention of the constitutional interpretation bodies in the event that they seize and entertain the matter.

The Crux of the Divergence

That COVID-19 and its induced state of emergency are good enough to cause postponement of the election has not been seriously opposed except by the TPLF. The more serious contention relates to who will be running the Federal and the Regional Governments once the terms of the incumbent governments have expired in early October 2020 pending the next election.

Some in the Opposition have suggested that because the constitution requires election as the only means of assuming power once the terms of the incumbent governments expire there is no way the Constitution allows the incumbent government to continue to be in power. Because the answer to this question cannot be found from the Constitution, they argue, negotiation among political parties on how to run the country during this period of time is needed. They suggest alternatives such as establishment of a transitional government.

The Prime Minster in a video statement on the matter has explicitly dismissed any option other than searching for a constitutional way of extending the terms of the incumbent governments. The government rejected such proposal as being not within the purview of the Constitution but proposed only to grab power in an unconstitutional way.

Essentially both are invoking the Constitution on their behalf. The Opposition claims that because the Constitution prohibits assumption of power except through election extending the term of the incumbent governments beyond their terms would be a violation of this principle of the Constitution. The government, on its part, contends the Constitution allows assumption of power only through election means it does not recognize negotiation among the political parties, care taker government or transitional government as means of assuming power.

Because election would not be the source of power in either of the proposals (extension of the terms of the incumbent government or other political arrangements) if the constitution requires election and only election as the only constitutionally recognized means to assume power  neither of the proposals would satisfy the constitutionally required mode of assuming power. It follows that both would be correct in dismissing the other side as proposing unconstitutional way of seizing power.

On the other hand, apart from dismissing proposal of the other as unconstitutional, neither demonstrates that in the absence of election their proposal is a constitutional way of assuming power. Indeed, the opposition has acknowledged that the solution they proposed is extra constitutional claiming that the Constitution does not have a solution to the problem.  

The government has preferred to refer the matter for constitutional interpretation while at the same time pre-emptively signalling that it would expect the CCI/HOF to come up with a constitutional interpretation that would allow elections to be postponed and terms of the incumbent governments extended. 

Election is the normal way of assuming power

As per the FDRE Constitution elections are the source of political power. As per Article 54 (1) membership in the House of People’ Representativesthe highest authority of the Federal Government— is to be secured on the basis of direct, free and fair elections held by secret ballot. As stipulated under Articles 54 (1) and 58 (3), the term of the House composed of elected members is five years. By virtue of Article 56 of the Constitution, the Executive is formed from a political party, or a coalition of political parties that has greatest number of seats in the House of Peoples’ Representatives. The Executive has the same term as the House of Peoples Representatives.

The Constitution envisions periodic elections every five years. Article 58 (3) requires that at the latest elections for members of an incoming House be concluded one month prior to the expiry of the outgoing House’s term. Under normal circumstances these constitutional provisions require that the 6th general elections be finalized early September 2020 and the outgoing House and Executive are expected to transfer power to the incoming House and Executive early October. 

 COVID-19 has already disrupted this scenario. Because pre-election activities have already been suspended even in the unlikely event that the pandemic subsides any time soon, it is already too late to undertake the general elections within the time the Constitution envisions to be conducted. No new elected legislative or executive body will be available to take power from the incumbent legislative and executive body in early October 2020. 

It follows that whoever assumes power in the interim period (between the time the terms of the incumbent governments expire and the time a new legislative and executive bodies are established through election) it would be an unelected body. No election, no elected body. Thus, it is obvious that election — the ordinary means of assuming power —would not be a source of power for this period of time.

But Election is not the only way of assuming power constitutionally

It follows that if election and only election were the only constitutional source of power, there would be no party to satisfy this precondition for this period of time. However, the Constitution does not seem to be that rigid. Article 9 (3), the most pertinent constitutional provision on this matter, stipulates that “[i]t is prohibited to assume state power in any manner other than that provided under the Constitution.

Article 9 (3) is so carefully worded that it can accommodate the situation that we are in.  Instead of rigidly prohibiting seizing power in any manner other than through election, it requires only that power be assumed in accordance with the Constitution. It is phrased wider than authorizing assumption of state power “only through election”.   

Prohibiting assumption of power except through election is different from prohibiting assumption of power otherwise than in accordance with the constitution. While the former makes election and only election as the means of assuming power, the latter is open to other ways of assuming power provided that they are compatible with the Constitution. Unlike the former which would have made the Constitution unhelpful to deal with the current situation, the latter, by recognizing means of assuming power other than election, accommodates the current situation where it has become impossible for election to be a source of power. 

As noted above, the ordinary way of assuming power is election. However, from the wordings of Article 9(3) the constitution is open to other ways of seizing power provided that these are compatible with the Constitution. That is more so, when we are in a situation where the ordinary way of seizing power is unavailable for valid grounds.  Because COVID-19 has made it impossible for election to be conducted, under the current state of affairs election cannot be the source of power.

Those who were involved in the drafting and approval of the Constitution confirmed the validity of this reading of the Constitution.  In their statement during the CCI’s public hearing on the matter, some have  told the CCI that the essence of Article 9 (3) is to prevent assumption of power through extra-constitutional means such as coup d’etat, succession, and terrorism. This is far from prescribing elections and only elections as the only source of power.

What is the other constitutional way of assuming power and who is eligible for that?  

As election — the ordinary means of assuming power — has been suspended from being source of power, this is the time to search for and resort to the other constitutional way of assuming power that Article 9(3) accommodates.  

As noted, Covid-19 induced state of emergency has resulted in the postponement of the elections. However, that does not necessarily entail extending the terms of the incumbent governments. Postponing elections and extending the terms of the incumbent governments should not be seen as two sides of a coin. The proposal that the terms of the government shall be extended till the postponed election is conducted requires its own separate justification.

While on pragmatism and efficiency grounds one may support letting the ruling party to stay in power as better than other alternatives such as establishment of a care taker or transitional government, nothing is apparent from the Constitution to favor the incumbent over the other.  Because assuming constitutional power without being elected is an unknown territory, it is for the CCI/HOF to explore, define and apply it to the current situation.

The CCI/HOF has faced a daunting task of reading into the Constitution on how an unelected body may assume state power constitutionally. As the guardian of the Constitution, the HOF has to live up to its heightened responsibility by giving a reasoned decision as to how a state power may be assumed in a constitutional manner other than through election. By so doing, the CCI/HOF would bestow state power upon the unelected body that it decides to be qualified for that. AS


Editor’s Note: Wondwossen (PhD) is a faculty member at the Addis Abeba University (AAU) Law School. He can be reached at: wondwossend@yahoo.com  

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