Law & Justice

Executive power succession twist

Deputy PM and Minister of Foreign Affairs Hailemariam Desalegn may step into the office of the PM smoothly, but that doesn’t solve Ethiopia’s opaque constitutional provision on succession plans

Kiya Tsegaye

One of the most anxious developments following the mysterious disappearance from the public scene and early rife speculations of the death of Ethiopia’s late Prime Minister Meles Zenawi was the legal complications surrounding his succession plans.

Bereket Simon, Ethiopia’s chief spokesperson, insisted during the late PM’s conspicuous absence that he was “in charge” (even in his absence) of the day-to-day activities of the government. More candid observers believed Hailemariam Desalegn, the Deputy Prime Minister and Minister of Foreign Affairs was running the show. Seeing the latter’s repeated appearance in global conventions including the last AU summit in Addis Ababa and the Sino-Africa summit in Beijing, buying into the argument that Deputy PM Hailemariam was in charge of the executive power comes natural. As such the government did not need to excuse in trying to place an absent PM in charge of the office. Article 75(b) of the Federal Democratic Republic of Ethiopia (FDRE) constitution clearly states that the deputy PM will act “on behalf of the Prime Minister in his absence.’

However, a close reading on the provision of the constitution regarding a clear succession plan in the case of unexpected events such as death and incapacitation of a PM reveals a disturbing vacuum.

Article 75(a) of the constitution clearly states the functions of the deputy prime minister: the “Deputy Prime Minister shall carry out responsibilities which shall be specifically entrusted to him by the Prime Minister.”  However, a sign of confusion, the article makes the Deputy PM only to be responsible to the Prime Minister. There is no clear statement if the Deputy PM does have a clear and autonomous constitutional power; rather he “performs duties assigned by the prime minister”. Put simply the Deputy PM is a sort of an assistant created by the PM himself. He has no constitutionally granted executive power outside this whatsoever, except executing orders received from the PM. Unlike the PM whose direct responsibility is to the House of People’s Representatives, the Deputy PM is responsible only to the PM himself.

 

Deputy PM Hailemariam

 Cooling anxiety

The arguments from the government are that regardless of the constitution’s unclear provision for power succession in case of incapacitation or death of a PM, the Deputy PM should automatically be the legitimate replacement based on the power delegated to him by the PM. This decision may have brought a big sigh of relief, but does not in any way solve the fundamental problem; the constitution needs a swift amendment.

In an attempt to calm public anxiety following the announcement on Tuesday August 21st of the death of the late PM Meles Zenawi, Bereket’s office sent out media notifications that the national parliament, in recess since late July, was to summon for an emergency session on Thursday August 23nd.  The news was hugely welcomed in anticipation that, against all odds, the parliament may actually swear in Deputy PM Hailemariam. However, the scheduled emergency session was called off the same afternoon bouncing many back into the feeling of apprehension and uncertainty. The government claimed the decision was to allow the public to have enough time to mourn the late PM. By the time this magazine went to the printing press on Tuesday Sep 4th, a senior government official confirmed party members will “endorse Deputy PM Hailemariam” following which the parliament will meet to approve the decision. But it may not come before the parliament is back from its recess sometime end of this month.  

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As good as the PM

The duty and responsibility of the deputy PM should be as good as that of the PM in the absence of the later and therefore has to be clearly specified. If one closely examines the case for Ethiopia, while the PM’s office does exist regardless of the person who occupies it, the duty and responsibilities of the Deputy PM remains unclear without the presence and consent by the PM.

According to article 74 of the FDRE Constitution, the PM is the chief executive, the chairperson of the Council of Ministers, and most importantly, the Commander-in-Chief of the national armed forces. It is a massive responsibility to have been left without clear say as to what happens  if the person holding it can longer be in the position to continue.

Ethiopia is not the only country to experience a sudden departure of its head of state; Ghana’s president Atta Mills died in July 2012. But the Ghana constitution has a specific provision dealing with the succession of the president. Article 60(6) of Ghana’s Constitution provides clear provisions on presidential succession: “(6) Whenever the President dies, resigns or is removed from office, the Vice-President shall assume office as President for the unexpired term of office of the President… (8) Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the function of the President until the President returns or is able to perform.” That explains the soft and quick power transition to the current President John Dramani Mahama.

Although the power transfer in the case of Ethiopia may go as smooth as anyone wishes it to be under the circumstances (and against all odds) the question remains why the drafters of the constitution omitted the case of incapacitation and death of the PM, unlike many other constitutions.  As it stands now, the answer remains within the ruling party.

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