Commentary: The Constitution should be interpreted, if at all, to re-constitute, co-govern & co-conduct a post-COVID-19 national election: IOLA

Dr. Henok Gabisa @henokgabisa

Dr. Kebene Wodajo @kebenewodajo &

Israel Gobana @Israelgobena

Addis Abeba, May 18/2020 – Decades of quests for effective self-determination, democracy and equality in Ethiopia run into a new dynamic in the last two years. Pre-existing political forces from home and exile returned to the landscape after what was a forced removal of veteran faces of EPRDF’s authoritarian regime. Then came PM Abiy Ahmed with some form of reform promises restored some lives to the continuity of politics in the State. PM Abiy explained himself in his Washington D.C.’s diaspora engagement of August 2018 that his urgent and ultimate goal is to carry the nation to its transitional destination, i.e., Election 2020, which also happened to be constitutionally scheduled.

Of course, election, a democratic one, is a ne plus ultra transitional mechanism in any society shaking off the dirt of post-conflict or post-authoritarianism.  Rule-based and bi-partisan national project, election is a peaceful means of transferring popular sovereignty to a legitimately elected government. There is no question that the popular protests in Oromia and territories of others nations in the last few years had been significantly fueled by the demand for, among other things, a legitimately constituted and elected government. A transition to democratic rule, while being a herculean task in itself, was one of Abiy Ahmed’s ticket to power in 2018.

The global epidemic of COVID-19 begun to threaten the scheduled national election, triggering constitutional controversy about postponement of the election. The matter shouldn’t have been this controversial if the country wasn’t believed to be in a transition of some sort. While there is little disagreement about COVID’s implication in possibly postponing the election, however, the unilateral political control of the process and outcome of this constitutional controversy by the government has begun to be seen as the complete betrayal of the reform promise.

The Council of Constitutional Inquiry, the body with the mandate to find meaning to this problem, has no history of merit proportional to what such unique moment demands, special when the government seems to have made its mind about proceeding with the postponement.  As members of International Oromo Lawyers Association (IOLA), we found there is no better moment to join the moment with our version of the story. This writing, therefore, is mutated from our Brief of Amici that we submitted to the Council in hopes of offering our transnational legal expertise and experiences.

This matter poses a serious political and constitutional challenge to the country’s democratic desire in that its outcome will likely position the government to unilaterally govern the country beyond its constitutional deadline with a significant retrograde in constitutional and popular legitimacy.

The election at hand is expected to be one of the major goals of democratic transition for the effective realization of the right to self-determination of the Ethiopian nations and nationalities in the context of the current popular political demand.  Therefore, the Amici’s interest is to establish an opinion that advice against the unilateral postponement of the election, the political cost of which might be highly consequential. We hold that, if there is an assumption that there is justifiable ground of interpretation of the constitution, the Council of the Constitutional Inquiry and the House of Federation should heed to the matter with a serious reading of the turns of political events on the ground. In such cases, we believe that the drafters of the Constitution had envisioned such matters to be resolved with a hybrid manner, i.e., constitutional and political solutions.

Arguments

1. There is no Constitutional Dispute nor necessity for Interpretation. There is no interpretation due. And neither the Council nor the House of Federation possess the mandate to offer Consultancy or Advisory Opinion.

FDRE Proclamation No. 798/2013 requires the Council of Constitutional Inquiry to establish the Principle of Necessity to Interpret.  Necessity is defined or finds expression in the context of whether or not constitutional dispute exists.  In other words, there has to be “any law or customary practice or decision of the government organ or decision of government officials” that is believed to run against or contravene the Constitution (i.e., Unconstitutionality).

This clearly indicates that the nature or the function of the Constitutional Inquiry and the House of Federation is essentially that of adversarial adjudication, as opposed to offering the function of Advisory Opinion or consultancy function.  The decision of the House of the Peoples’ Representative (HoPR) on Me’aziya 27, 2012- Ethiopian Calendar) seeking the “constitutional interpretation” on the postponing of the national election is, in fact and in essence, a request from the Council of Constitutional Inquiry (CCI) and the House of Federation a service for advisory opinion- a power or service never believed to have existed under article 62(1) of the FDRE constitution, subsequent proclamation and its own past practices.[i]

The fact that the House of Federation doesn’t have consultancy or advisory service had been confirmed when in the past years the Council of Constitutional Inquiry rejected the request by the Regional Government of Oromia to interpret or clarify the content of “Oromia Special Interest Clause” on the basis of the House’s lack of mandate to issue  “Advisory Opinion.”[ii] The Council or the House of Federation, accordingly, seemed to have established itself for the purpose of ONLY interpreting the constitution in the context of “a real case or controversy.”[iii]

Therefore, the House of Peoples’ Representative’s current request for constitutional guidance on the postponement of the national election and subsequent matters is not supported by the constitution or any relevant proclamations. If the Council expressly refused to clarify the content of the “special interest” clause in the past, nothing makes it valid to presently engage in clarification or guidance activities with election postponement beyond the end of a constitutionally mandated term of office as this matter too doesn’t present an actual constitutional dispute.   

We cannot either assume profligately that the constitution or establishment statutes allow the Council or the House some sort of discretion to engage in the offering of consultancy service, as some would claim.  The essence of the Council and the House of Federation is to maintain constitutional certainty and stability when disputes arise. This can only be done though an adjudicatory binding constitutional decision. We ask: what purpose does advisory opinion serve, anyways? It is not binding by nature and why should the requesting body (i.e., the parliament in this matter) obey the opinion? This means, there is no constitutional certainty that will be achieved through the process of constitutional guidance by the Council. If for example, we assume the Council’s advisory opinion on this matter goes along disallowing the postponement, there is no incentive for the government that has already made its mind on the need to postpone the election, to accept or heed to the decision of the Council. 

2. There is No justifiable grounds that merit Constitutional Interpretation in this matter. Even if we assume there could be one, the Council of Constitutional Inquiry or the House of Federation cannot confer a unilateral political power upon un-elected government to unilaterally rule the country beyond the Constitutionally sanctioned election deadline.

Legal interpretation generally and constitutional interpretations in particular, takes place where there are justifiable grounds such as – vagueness, silence and contradiction. Hence, the main inquiry should be whether the provisions under question – Art. 54 (1), Art. 58 (3) and Art. 93 – show any of these three grounds.

Vagueness – When a given word or phrase in the constitution is unclear or vague, it calls for interpretation by the institution formally bestowed with the power to do so. In the current case, none of these provisions are vague to warrant constitutional interpretation by the House of Federation. Art. 54 (1) and Art. 58(3) explicitly specify the term limit of members of the House of Peoples’ Representative to five years without any condition. Likewise, Art. 93 is clear on grounds for the declaration of state of emergency – “…external invasion, a breakdown of law and order which endangers the Constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel, a natural disaster, or an epidemic occur”.  

Contradiction – The second ground that brings constitutional interpretation to fore is when federal or state law is in contradiction or conflict with the constitutional provision or contested as being unconstitutional (Art.84 (2)). Again, in the case at hand, there are no such grounds to justify the need for interpretation.

Silence – This ground calls for interpretation of the matter(s) on which the constitution kept silent or left unregulated. Now the question is whether the constitution is silent on the extension of term limits or not. Or if there are grounds for the declaration of a state of emergency as stipulated under Art. 93. This too cannot be a justifiable ground for interpretation since all the provisions are not silent both on the parliaments’ term limit and grounds for the state of emergency. In addition, Art. 9(3) clearly rules out the assumption or continuation of power other than by means and procedures laid down under the constitution. With regards to the declaration of a state of emergency, grounds for declaration stipulated under Art. 93 (1) (a) are explicitly and exhaustively listed as those mentioned under the vagueness ground above. In line with this provision, a state of emergency is already declared to contain the spread of COVID-19 for five months. Other than for the purposes listed under Art. 93 (1)(a), a state of emergency cannot be used to extend the tenure of the parliament beyond five years as specified under Art. 54 (1). Therefore, there are no justifiable constitutional interpretation grounds in this case that merit constitutional interpretation.

Even if we assume that there could be any remote chances for the existence of justifiable grounds for interpretation, we believe that the Council cannot interpret the constitution in a manner that confers a unilateral political power upon the government to unilaterally carry the country beyond what is plainly sanctioned in the constitution as under Art. 54 (1). The expiry of the political power or mandate of the government seems to end mechanically under the cumulative reading of Art. 54 and Art. 56.[iv] Any irregular tenure outside of the auto-constitutional-expiration of the 5 years term limit of the House of Peoples’ Representative, requires the involvement of outside  political parties, requiring an extraconstitutional and multiparty remedy for the problem. We will address this in the immediate section of the brief.

3. For All Purposes and Intents, the FDRE House of Peoples Representatives had already been dissolved by the Prime Minster under Art. 60(1) and A De Jure Caretaker Government has already been formed under Article 60(5) of the Constitution. Therefore, we believe that The Council of Constitutional Inquiry should interpret the Constitution in a manner that obliges the Government to invite all political parties to reconstitute a government under Article 60(2) and co-conduct a post-COVID19 National Election

Following the dissolution of the previous ruling party (the EPRDF) and subsequent formation of a new party (i.e. Prosperity Party), we believe that the previous parliament, which was made up of the members of the EPRDF, has already been dissolved and the existing government (as manifested through the newly refashioned Prosperity Party (PP), but acting with the political mandate from the previous coalition-EPRDF) is considered by the constitution to be a De Jure Caretaker Government as provided under Art. 60(5). In the situation where the House is dissolved under Art. 60(2), the Constitution allows the President of the Republic to invite non-EPRDF or non-PP Political parties, within one Week, to agree to reconstitute a new government. Even though the one-week time frame is gone long time ago, the constitution seems to lay a permissive rule, which means, the President of the Republic can still be allowed to invite and convene political parties for multiparty negotiation and discussions on the future course of the country’s governance including holding a new election under Art. 60 (3). 

We hold an opinion that the Council of Constitutional Inquiry and the House of Federation should conduct a serious and deep reading of Article 60 of the FDRE Constitution cumulatively with the major turn of political events overs the past few months since the dissolution of the EPRDF and its substitution by the Prosperity Party. This will reveal the intention of the drafters of the Constitution, which we believe would hint towards the possibility of a hybrid (constitutional and political) solution towards resolving the current gridlock on the national election. The Council of Constitutional Inquiry should take its interpretive role seriously and remand the request back to the House of Peoples’ Representative to require the President or the Prime Minister of the FDRE reconsider an inclusive multiparty agreement on how to reconstitute a coalition government under Art. 60(2) and co-conduct post-COVID19 elections, a national political task which seems to be definitely compatible with the intended pattern of the Constitution under Art. 60.

4. The outcome of the interpretation effectively culminates in constitutional amendment and defeats the national Ethos

Constitutional Interpretation in the absence of justifiable interpretation grounds has practical and lasting implications that goes against the national ethos for two reasons: Pragmatic and national ethos.

• Pragmatic implication

Beyond the textual and contextual interpretations of constitutional provisions, paying attention to the likely pragmatic effect of such interpretation is quintessential.[v] Measuring and assessing the practical effect of an interpretation requires balancing the probable practical outcome of one interpretation against other alternatives.[vi] In the case at hand, the provisions for which interpretation is requested by the House of Peoples’ Representative (HPR) – Art. 54 (1), Art. 58 (3) and Art. 93 – as shown in the preceding arguments, do not merit interpretation. Or lack a legitimate ground to do so. Hence, an interpretation that will be given absent justifiable grounds amounts to constitutional amendment by effect rather than interpretation. Consequently, resulting in the unconstitutionality of the interpretation.  Mainly because amendment follows a particular constitutional procedure stipulated under Art. 105 of the FDRE Constitution.[vii]

In accordance with this provision, the only constitutional way of amendment to articles under discussion – Art. 54 (1), Art. 58 (3) and Art. 93 – is only if it passes through the two-level approval test. First, approval of the proposed amendment by two-thirds of the Councils of the member States of the Federation by majority vote. That is, the proposed amendment must get approval with majority vote at least by two-thirds of the nine – i.e., 6 – Councils of member States of the Federation. Second, a joint session of the House of Peoples’ Representatives and House of Federation, must approve the proposal with a two-third majority vote. An amendment or any form of change that fails to follow the stipulated procedural requirement, is deemed unconstitutional.

Hence, the practical effect and outcome of interpretation of Art. 54 (1), Art. 58 (3) and Art. 93 in the absence of justifiable grounds for interpretation being equivalent to introducing change or amendment to the constitutional provision in an unconstitutional manner.

• National Ethos

Legal interpretation, especially that of constitutional interpretation at times draws upon the distinct character and the national’s value in order to elaborate on the Constitution’s meaning.[viii] Assessing the Constitutional interpretation underway in light of this doctrine requires to highlight on the foundational Ethos of the Federal Democratic Republic of Ethiopia. Ethiopia is a nation of nations built on the fundamental right to self-determination that encompasses self-rule and shared-rule. And hence, sovereignty resides with the people, nations and nationalities – Art. 8. The sovereignty of the people can be exercised in many different ways. Among these is through self-rule by their representatives elected in accordance with the constitution (Art. 8 (3)) and leverage over amendment of the constitution. With regards to self-rule, an interpretation of Art. 54 (1) or Art. 58 (3) or Art. 93 in a way that contradicts the foundational Ethos – i.e., self-rule – of the people would be unconstitutional and has the practical impact of shaking the constitutional foundation of the country. State of emergency under Art. 93 (1) can be used to suspend the right to vote and be elected stipulated under Art. 38. However, it may not be used to limit the sovereignty and self-governance of nation, nationalities and peoples stipulated under Art. 8 (3) and Art. 9 (3). Particularly because, these provisions implicate Art. 1 of the constitution that constitutes a Federal and Democratic State structure, which is not subject to suspension even under state of emergency as specified under Art 93 (1).

With respect to constitutional amendment, as shown in the previous paragraphs, the interpretation of the constitution in the absence of justifiable ground amounts to constitutional amendment. However, the constitution explicitly has specified a procedure for constitutional amendment and there are institutions mandated to do so. The mandate of constitutional amendment is endowed to the Council of member States and the joint session of the House of Federation and House of Peoples’ Representatives. In addition, it is a manifestation and representation that the covenant that established the country is subject to change only with the say that comes from the people themselves through their representatives. Therefore, using interpretation to run the task of amendment amounts to eroding the people’s control and voice over the constitution and in doing so, putting such a mandate into the hand of few experts.

5. Council of Constitutional Inquiry’s mandate to interpret the Federal Constitution has the outcome that would certainly violate the Regional Constitutions

One of the guiding constitutional principles of Ethiopia is that the popular sovereignty is bestowed in nations, nationalities and peoples (Article 8 and 39 of the FDRE Constitution).

The Council possesses jurisdiction only over the Federal Constitution.[ix] But, if the Council opts for interpreting the constitution, and worst yet, if the Council ended up extending the constitutional deadline for government mandate, they are in effect interpreting the constitution of the regional states against their wishes. The prime example can be found expressed in the context of the Tigray Regional State’s recent decision to continue with the scheduled election at the regional level. Tigray has already objected to the postponement of the national election. This doesn’t sit well with the tenet of the Constitution in relation to the establishment of the House of Federation, which is essentially established to express the Collective Will of ALL nations and regions. Therefore, any interpretational outcome that likely extends the deadline of the election will fail or betray the collective will and Sovereignty of nations and nationalities and peoples of Ethiopia. The framers of the constitution didn’t seem to envision for the Council and the House of Federation to interpret the document against the express will of those who it was created for.

Conclusion

It is imperative to note that the national election requires sensible and well-informed governmental decisions that are based on scientific data from specialize health authorities. The purpose of this is to preserve legal certainty, because elections are by nature rules-based exercises. There is no doubt that Ethiopia’s national election is plainly and unequivocally sanctioned by constitutional deadline under Article 54 (1) and 58 (2) (3).

Any engagement or decision from the Council of the Constitutional Inquiry or the House of Federation that possibly leads to the extension or postponement of the election and subsequently confers upon the government a unilateral national mandate to rule beyond the deadline, not only causes constitutional instability and ultimately affects the future credibility of the election itself (at some point down the line), but also dramatizes the unconstitutional capture of governmental power beyond its constitutionally terms and mandate.  We see it as nothing more or less than a unilateral political performance of the constitution and unconstitutional performance of the politics.

• We strongly believe that neither the Council of the Constitutional Inquiry nor the House of Federation apparently possess any ground to offer unbinding advisory opinion at all times, nor interpretative grounds to justify any of its outcomes in this particular matter, whether that be allowing the unilateral postponement or not allowing the election.

• There is no need for interpretation of the constitution in the absence of a clear dispute or contradiction or ambiguity of the constitutional article under request.
• Even if we assume the matter presents a justifiable ground for constitutional interpretation, we believe the drafters of the constitution had envisioned a situation such as this to be resolved with a hybrid solution (constitutional and political) manner. This means, for all purposes and intents, the FDR House of Peoples Representatives had already been dissolved by the prime minster under art. 60(1) and a caretaker government had already been formed under article 60(5) of the Constitution. Therefore, we believe that the Council of Constitutional Inquiry should interpret the constitution in a manner that obliges the government to invite all political parties to reconstitute a government and ultimately co-conduct a post-COVID19 National Election
• Second, the possible outcome of the Council’s decision in this matter will take an ill turn and inevitably result in an act of constitutional amendment-an act which is unconstitutional and a serious violation of the amendment clause that strictly requires the majority vote of “all state councils” to approve the amendment proposal as stipulated under article 105. AS

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Editor’s Note: The following commentary is submitted to Addis Standard on behalf of International Oromo Lawyers Association (IOLA).

Dr. Henok Gabisa is from The Washington and Lee University School of Law, Virginia, USA

Dr. Kebene Wodajo is from St. Gallen University, Switzerland

Israel Gobana is from Gobana and Associates Law Firm, Minnesota, USA

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Footnote:

[i] FDRE Constitution Article 62(1): “The House [House of Federation] has the power to interpret the Constitution”

[ii] See T. R. Ararssa available at https://addisstandard.com//wp-content/uploads/2018/02/Special-Edition-Full-version-.pdf (February 2018)

[iii] American judicial experience has also dealt with the doctrine of “real case and controversy” in cases of: Arizonans for Official English v. Arizona, 520 U.S. 43 (1997) and Renne v. Geary, 501 U.S. 312 (1991). IN a way, this resembles Ethiopia’s House of Federation pre-existing practice, as observed in the Oromia’s Special Interest Clause.

[iv] FDRE Constitution Art. 56 reads: A political party, or a coalition of political parties that has the greatest number of seats in the House of Peoples’ shall form the Executive and lead it

[v] Richard Posner, the Problem of Jurisprudence, (1990) 31.

[vi] Richard A. Posner, What Has Pragmatism to Offer Law?, 63 S. CAL. L. REV. 1653, 1670 (1990)

[vii] FDRE Constitution Article 105 (2, a-b) specifies amendment procedures for all provisions except those stipulated under Chapter 3, Art. 104 and Art. 105 of the constitution:

All provisions of this Constitution other than those specified in sub Article 1 of this Article can be amended only in the following manner:

(a) When the House of Peoples’ Representatives and the House of the Federation, in a joint session, approve a proposed amendment by a two-thirds majority vote; and

(b) When two-thirds of the Councils of the member States of the Federation approve the proposed amendment by majority votes.

[viii] Brandon J. Murrill, Modes of Constitutional Interpretation, Congressional Research Service, March 15, 2018.

[ix] Article 2 of Proclamation No. 798/2013: Unless the context otherwise requires, in this Proclamation: (1) “Constitution” means the Constitution of the Federal Democratic Republic of Ethiopia