By Milkiyas Bulcha
Addis Abeba – The National Dialogue (ND) has become popular for conflict transformation, lest it may be manipulated to consolidate the power of a ruling party. For a country like Ethiopia, where the legitimacy of the state has been in deep trouble since its establishment, a non-inclusive proclamation such as ‘the Ethiopian Proclamation for the Establishment of National Dialogue Commission (NDP) would further complicate the matter. The state-society relationship in Ethiopia was established on the use of force and is maintained by force. As a result, the state legitimacy remained contested and the promulgation of constitutions could not transform the state into a legitimate entity. Carrying on the forgoing long-term legitimacy deficit, the disagreement and differences among political elites in the country have led to devastating armed conflict and humanitarian crises. The country is truly in a horrible situation and a state of necessity for an auxiliary remedy, failing to do so will lead to disintegration. In the last five years preceding EPRDF and now Prosperity Party (PP) declared several times about ‘reform’, ‘deep reform’, ‘transition to democracy’, and lastly ‘the national dialogue (ND)’ come to be a public agenda as some sort of soothing attempts to deal with multiple crises facing the country.
Accordingly, this piece explores the validity of the NDP initiated and enacted by the ruling Prosperity Party (PP) led government that created the ND Commission. Following this introduction, the second section presents the relevant summary of the content of the proclamation. The third section is devoted to the legitimacy analysis of the process, content, and intended output of the NDP. The final section presents the concluding remark and way out.
Summary Content of the NDP
The proclamation which initiated ND has been cited as the “The Ethiopian National Dialogue Commission Establishment Proclamation No. 1265 /2021. It has five parts: the preamble, general provisions, establishment of the commission, the commissioners, and the structure of the commission and miscellaneous. The Preamble of the NDP acknowledges differences and disagreements on fundamental national issues. It declared that resolving the differences and disagreements is a necessity, not a choice. It provides that the only way to resolve the variances is via broad-based inclusive public dialogue. It projected that the ultimate goal of the ND is to build national consensus and bolster a culture of trust. It defined ND as a consultation of different bodies facilitated by the Council of Commissions at the Federal and Regional levels on the agendas identified by the act and the commission. It incorporated fundamental principles of the ND including inclusivity, transparency, credibility, tolerance and mutual respect, rationality, implementation and context-sensitivity, impartial facilitator, depth and relevance of agendas, democracy, and rule of law, national interest, using national traditional knowledge and values. The NDP established the Commission containing 11 members nominated, appointed, and accountable to it by HPR for three years of the term office.
Naively reading, the proclamation may appear that it is designed for ‘national dialogue’ – inclusive, and participatory, but it is a camouflage for a monologue. However, this paper argues that, first and foremost, the proclamation is unconstitutional, discriminatory, lacks credibility and public confidence, and above all it is a top-down model –which further undermined the legitimacy of the Ethiopian National Dialogue Commission.
The ND could only be pursued either in a constitutional setting or in an extra-constitutional framework. There is no middle ground in the spectrum of the constitutional and unconstitutional lines.
The Validity of the NDP Scrutinized
1. The NDP is unconstitutional and Exclusive
The NDP altogether with the commission it has established is unquestionably unconstitutional. This is because the House of People Representatives (HPR) has no power to make laws not explicitly given to it by the constitution. The power of HPR is restricted by the Constitution to federal matters and only in specific areas- exhaustively given to them. There is no room at all for the HPR to enact a law creating a commission facilitating ND. While ND is a venture synonymous with constitutional business, the HPR is mandated to make legislation less a constitutional endeavor. It means that the constitution does not allow anybody to enact legislation contradicting it. The Constitution intentionally refutes HPR’s power to enact laws on political or national dialogue matters. The constitution empowered them to approve general policies and strategies of economic, social, and development, and fiscal and monetary policy of the country, but not political policies and strategies.
The ND could only be pursued either in a constitutional setting or in an extra-constitutional framework. There is no middle ground in the spectrum of the constitutional and unconstitutional lines. In the constitutional setting, all complications are recommended to be cured by the umpiring mode of the constitution itself. The constitutional provisions drafted in general terms tried to cover all issues or were filled by constitutional umpire or alteration measures. Furthermore, it is likely conceivable to delete some of the unpleasant text of the constitution in the same way we will use to add rights that had not been incorporated before. The second approach to settle Ethiopia’s severe problem might be by way of using an extra-constitutional model. This could be seen as fitting to heal the past illness owing to the insensitivity of the constitution or simply because the constitution lacks guardians owing to the incumbent ruling elite’s revolts against it. Unless done by consensus of people to genuinely solve the critical problem, the latter situation must be underscored as such that it is an unlawful and unconstitutional undertaking. If we choose to resolve our past tribulations by going beyond the constitution both procedurally and substantively, it means that the existing constitution legal regime will come to be over so that all the systems of government, forms of government, and institutions established by the constitution will be suspended. As a default rule it may require establishing a transitional government until the sought national negotiation is conducted on the future constitution we would have probably.
The NDP is not inclusive in the process of initiating, drafting and adopting the proclamation. It has been initiated by the PP-led government, and one can safely conclude that it is the ruling party’s project rather than a national endeavor. It was initiated during the time the armed conflict was enduring and in a state of emergency when political and democratic rights were remaining suspended. As a result, imputes from opposition political power were not taken which are considered as the major stakeholders who should have much say on the deliberation of the national dialogue issues. Even when the council of political parties requests the government to make it a collective project, the government rejects it.
2. The Commission Established by the NDP is not Credible and Lacks Public Trust
The commission members were recruited, nominated, and appointed by HPR. Currently, the HPR is composed of one party-dominated parliament in an extraordinary majority seat. The pseudo opposition party secured a few seats; later shared power with the ruling party clutching imperative ministerial positions cannot build valid trust in the NDP. The HPR sensibly expected to select and appoint the commission members from lists of personnel they trusted, strapped with their ideology. That is why the commission’s accountability is not for people, nor to their conscience; rather to the HPR themselves. Because the Prime Minister (PM) is the top leader of the ruling party, the head of the executive, and the member of the HPR, there is no way the commission is immune from being accountable to the PM. As a result, it does not build public trust. Even if the commission attempts to be independent, the HPR will expectedly disable them in various ways i.e. repealing their enabling legislation. Logically, to create a credible, capable and independent commission, requires putting them unreachable by legislation and politics by rebuffing their establishment through ruling party legislators. Personally, some of the commission members were in the position of top government officials- e.g. the chairperson was nominated by the PM and served as a committee member of the Administrative Boundaries and Identity Issues Commission. No participation of stakeholders has been seen in the process of selecting and appointing the commission; thus lacks credibility and legitimacy and exclusionary, with no broad-based consultations. Powers are given to the commission- to select the agenda and determine the participants of the dialogue violates the right to self-determination of people.
The public and other key political stakeholders had no chance in the initiation and hosting of the ND. This violates the rights of people to freely determine their political status because of the top-down imposed monologue choice of the proclamation.
3. The NDP Employed Top-down Approach with Flawed Purposes
The initiation of the ND was exclusively declared by the central government only. It does not recognize the sovereignty of the people. The public and other key political stakeholders had no chance in the initiation and hosting of the ND. This violates the rights of people to freely determine their political status because of the top-down imposed monologue choice of the proclamation. The fundamental national issue that was envisioned to be reached on consensus via ND by resolving differences and disagreements is not clear. Visibly it is perplexing and expected to be controversial to have common national issues in multilingual federal states, definitely in polarized political communities. Since no framework agreements have been set out on the outcome from kickoff, in case unable to reach consensus by the ND, the ruling PP government solely determines its outcome and implements it. This makes the ND pointless. The NDP does not address the current conflict directly. It does not provide the means and mechanism for resolving disputes in the process of deliberation of ND.
In Ethiopia, the tabled ND could not be a panacea for all problems. Instead, it exacerbates the problem since the proclamation itself is unconstitutional and exclusionary; the appointed commissioners are neither credible nor are they independent. The top-down approach methods used to violate the rights of self-determination of people. To respond to the crises through ND, only constitutional setting or in extra-constitutional framework ways is recommendable. The ruling party, accused of all crises, cannot be trustworthy to initiate the ND while claiming to enjoy power emanating from the constitutions. To that effect, the NDP has to be declared null and void. To do so, any interested party can take it to the regular Court or arguably to the HOF to have a declaration of nullification. Above all, since the original power to change, amend, and determine any constitutional issue belongs to the people, not HPR, the business of the ND issue has to be taken back to the People. AS
Editor’s Note: Milkiyas Bulcha is a lecturer at Ambo University, School of Law, Attorney and Consultant at law, and a Ph.D. student at BHU School of law. He can be reached at: firstname.lastname@example.org.
This commentary was first published on the May 2022 version of Addis Standard print magazine