Op-Ed: Constitutional interpretation? Not for this
Adem Abdulrezak
Addis Abeba, May 06/2020 – According to IDEA elections of at least 52 countries around the world, Ethiopia included, are being affected by the COVID-19 pandemic. This offers a context to understand that Ethiopia cannot claim exceptionalism when it comes to deferring national elections due to the health pandemic. It is perhaps unique for the administration that has waited for ‘so long’ to obtain a mandate through the process of electoral representative democracy. One may add that in the past two years, decades of accomplishments have been recorded. The elections would have helped the government of Prime Minister Abiy Ahmed to gauge the public’s perception, not so much of what he envisions, but of what he has already accomplished.
With all the political upheavals of the past two years the antecedents to these elections have attracted an exceptional attention exploiting also the expanded democratic space as a platform. The health pandemic has come to cloud the cliffhanger. The likes of Covid-19 never crossed the minds of Ethiopian politicians, the National Electoral Board of Ethiopia (NEBE) and others, when preparations were gearing up back in October/November 2019, where some opposition political parties were even beginning some forms of election campaigns. For the administration, every single dawn lighted up something that spoke out positively to the national constituency without a campaign banner and raising hopes so high.
The pandemic has however led to declaration of State of Emergency and expectedly, postponement of the elections on March 31. Standing between today and end of September 2020, the time that the current parliament becomes out-of-term, what should be the best course of action for the government, the country and the people of Ethiopia?
Following the decision to postpone the elections and the subsequent tabling of the now famous ‘Four options’, interesting debate has emerged on those courses of actions, the one calling for Constitutional interpretation and approved on May 05 by the House of Peoples’ Representatives, more favored than the others. In this regard, those interested may benefit immensely from Commissioner Solomon’s piece and Mamo Mihretu’s, both arguing in favor of seeking quasi-judicious determination on the contents of the Constitution to help the government navigate through these extraordinary circumstances. Commissioner Abebe too weighed in to the debate, again arguing for the same approach.
But elsewhere former commissioner of Ethiopian Investment Commission Belachew Mekuria (PhD) ran a thought-provoking Twitter thread.
Indeed, the Constitution has designed mechanisms to deal with a pandemic and other emergencies, but understandably it does not stipulate the means by which elections could be deferred, and how executive power, which traces its birth to ‘mother parliament’, can be extended. That is why interpreting the text looked appealing to both the government and independent legal minds. But another option by Jawar Mohammed offers non-Constitutional paths in a form of political solution.
House of Federation’s mandate was born out of the idea of ensuring the integrity of the political contract- the Constitution- among the nations, nationalities and peoples of Ethiopia, with a focus on strict implementation of the rights of self-determination in its truest sense. This was specifically made clear in Article 62, which outlines the 11 competencies of the Upper House, each one of which relate to ensuring the maintenance of the federal architecture. It was one of the strongest points made during the deliberations on the draft justifying the non-judicial interpretation of the Constitution: only the nations, nationalities and peoples themselves, as parties to the contract, should be mandated to interpret their agreement so that their right to self-determination does not get compromised by selected ‘legal experts’ (the judiciary) whose allegiance is to nothing other than the law.[1]
The matter at hand as it relates to how to govern in this interim period, is hardly a subject that this organ is up for supporting. Even though it will rely on legal minds for articulating the topic, its political decision will directly affect the House itself one way or the other, which will legitimately put its impartiality to doubt. It will, in other words, be asked to propose how its own term could be extended, among other things. In this case, the House will be asked to provide interpretative solution while there is nothing to interpret.
Even if Article 60(1) is said to only envisage dissolution of parliament that relatively has longer period still left to function, there is no ground to exclude dissolution of a parliament left with one day, or like the one we have at this juncture. In that light, I respectfully differ from this ‘popular’ view of Constitutional interpretation and rather argue for dissolving parliament. Below are three reasons why this is the best course of action, from among the many options proffered so far.
First, the Prime Minister and his cabinet will be exercising Constitutionally guaranteed power that cannot be questioned by the regional governments and others which are showing signs of undermining the federal government’s authority quite for some time now. In dissolving the parliament, it will not only avoid the risks of being accused of partiality in relying on a House where its Party has majority, it will also send a clear message that the actions are informed by the Constitution based on which the executive stands a better chance of bringing everyone to the line.
Second, the solution we expect by interpretation would in simple terms be, at the risk of being speculative, extending the terms of parliament. This would, apart from questioning its legality, come at the highest legitimacy risk to the House which will by implication be extending its own term. These two Houses are sections of a bicameral parliament even though for historic and political reasons, are made to have distinct mandates. The House of Federation may be asked to do so many things, but cannot be asked to solve the current impasse we have found ourselves in. Who will submit the request as having vested interest in this matter? Will there be public consultation? Which provisions of the Constitution will be the subject of interpretation? Once interpreted, which organ will enforce the decision? Extending the terms of parliament through interpretation does more damage to the constitutional order than moving to a ‘caretaker’ mode for the executive, giving it the opportunity also to focus on what is most urgent: the pandemic and the elections. In the normal course of things however, there is no control on the outcome of the interpretation as it could end up being anything else.
Third, interpretative twist of the Constitution will have a far-reaching consequence compared to living up to its terms and following the path of dissolving parliament. In this circumstance, the PM’s roles as Commander-in-Chief and head of government will continue unaffected, except that his cabinet cannot issue regulations, including declaration of state of emergency. The only remaining neuter, and perhaps with the power to oversee the proper running of government in lieu of the Parliament would be the office of the President. The Head of State will have to step in to convince the regions to work collectively and supporting the executive to navigate through these difficult periods in the country’s history. Fighting the pandemic will have to continue in tandem with supporting the electoral body drawing up conservative timeline for the elections that should be complied with in the strictest of terms.
In closing, these op-ed was composed after the Parliament has decided to endorse the referral of the matter for constitutional interpretation. Whichever direction this goes, I hope every side involved in the discussions gives precedence to the safety, wellbeing and livelihoods of the people of Ethiopia. We have seen that miracles could happen when positive energy is garnered towards changing a country. Ethiopia has seen a flicker of hope due to the political transformation over the past two years and keeping that momentum will require debating ideas by putting the people’s interest at the center all the time. Doing the right thing is never too late. AS
[1] This was one of the many reasons mentioned when the Constitutional Assembly deleted the term ‘constitutional court’ and replaced it by the Council of Constitutional Inquiry which led to some of the monumental modifications. The CCI was made to come in as ‘an adviser’ to the House of Federation on how to interpret the constitution, keeping the ultimate decision as purely political. The original proposal to have 6 members to represent the House of Federation in the CCI was reduced to 3, while the Assembly upped the legal experts to be appointed by Parliament from the proposed 3 to 6.
