Op-Ed: Seeking constitutional interpretation: Not ideal but legitimate

Yonatan T. Fessha, @YonatanFessha

Addis Abeba, May 05/2020 – The impact of COVID-19 is obviously not limited to the public health system. The around the clock updates we receive from major news outlets on the global state of the pandemic reveal the major economic and political challenges brought by the virus. But it is hard to think of any other country where the virus has brought a constitutional crisis. That is at least how many are describing the current situation that governance in Ethiopia has found itself.

At the center of the tension is the fate of the current administration after October 2020 when its current term is expected to come to an end. The constitutional options outlined by the government, widely discussed by constitutional scholars and politicians alike, are so popular now that one may even think that constitutional conversation is part of the free time activities of many Ethiopians.

The government has now decided to go for the option of requesting constitutional guidance from the House of Federation. The speed with which the government moved from presenting the options to deciding is baffling. So much for its earlier promise of meaningful engagement with stakeholders. Nevertheless, the constitutional conversation continues.

The perfect storm

In response to COVID-19, the government has declared a state of emergency. The federal and state election, scheduled in August, are now cancelled. There seems to be a wide support for these decisions from almost all sides of the political spectrum. But no agreement on the way forward. What does the Constitution provide for the no election scenario before the end of a term of the current parliament? The Constitution does not have a definitive answer.

When the constitution is silent

Some have taken this to mean that there are no constitutional solutions. If constitutional silence were to indicate the absence of a constitutional solution, constitutional texts would have become too bulky and constitutional amendments would have been more regular and frequent. The US Constitution would not have survived the developments that unfolded since its formulation by its slave-owning founding fathers hundreds of years ago. Racially segregated schools would have been the norm beyond the 60’s if it was not for the historical decision of the US Supreme Court that outlawed segregated schools. South Africa would have still sent criminals to the death row if it was not for its Constitutional Court that filled the gap by declaring the death penalty unconstitutional. Canada would have been in a constitutional crisis if it had not sought the advice of its Supreme Court on whether Quebec can secede from the country. In short, we would not be talking about ‘a living constitution’.

The reality is that democracies around the world resort to courts for guidance when the constitution is silent, or its meaning is contested. Courts and similar adjudicating bodies have come to play a crucial, albeit controversial, role in filling the unavoidable gaps. This says that the decision of the government and parliament to seek constitutional guidance from the body that is tasked with interpreting the constitution (in our case, the House of Federation) is not only a legitimate constitutional option but also the normal thing to do in a constitutional democracy.

Legitimate but not ideal

Although legitimate, this is not an ideal option. This is largely because of the unusual model of constitutional review the constitution has chosen to adopt.

Under the Constitution, the courts are excluded from constitutional adjudication. The power to interpret constitutional disputes is given to a political body, the House of Federation (HoF). In practice, the House is regarded as the exclusive interpreter of the Constitution. It is supported by the Council of Constitutional Inquiry (CCI), a body composed of lawyers and politicians that provides expert advice on constitutional disputes brought before the HoF. The final decision rests with the House, as the role of the CCI is limited to providing recommendations. This unusual model of constitutional review is problematic since it leaves the federation without a credible umpire stakeholders can rely on to police the Constitution.

Comprised of politicians, the House does not have the necessary expertise for the kind of analysis that constitutional adjudication requires. Constitutional disputes raise complex questions of law. This is not, of course, unique to Ethiopian legislatures. Legislatures are seldom competent ‘to deconstruct the content and implications of complex constitutional rules’. The HoF is, of course, supported by the CCI, which must decide on matters of constitutional dispute and make a recommendation to the House. While it is possible to argue that the House’s deficit in expertise is compensated for by the Council that would be to reduce the House to an institution that serves as a rubber stamp for the findings of the Council’. It would also ignore that the ‘House needs to deliberate on the reports of the Council before it decides to adopt or reject its recommendations’, a task which definitely requires grappling with matters of law and competing constitutional principles. In practice, there were also cases where the House rejected the recommendations of the expert body.

In short, it is not a competent, impartial, and suitable umpire that can police the Constitution. It is not, therefore, surprising that very few cases have made it to the HoF, with most decided in favor of the government. The institutional and functional problems of the HoF have made it impossible for the latter to promote constitutionalism and effective federal governance. That makes reliance on the HoF to take us out of the constitutional conundrum less ideal. Yet, it is not as bad as the option that asks us to look for a solution outside the constitution.

‘Ignore the Constitution’?

One common suggestion is to ignore the constitution and enter a political agreement on this issue, and only on this issue. This does not seem to be a request to form a transitional government that will oversee a constitutional reform process. Probably the target is some kind of arrangement that will leave the constitution untouched but prepare the country for the next elections. This is a request to act outside the constitution. It is okay to do so, goes the argument, because we do it only for a limited purpose. But this is a call to suspend part of the constitution that dictates on how government should be formed. It is a proposal to ignore Article 9 of the Constitution that prohibits the assumption of power ‘in any manner other than that provided under the Constitution’. But one cannot have the cake and eat it too. Either you try to work within the limits of the constitution or dump the constitution altogether and sit around the table to negotiate a new social contract.

The way forward

Seeking guidance from the HoF is politically problematic. But it has a strong constitutional basis. The choice should therefore not to go outside the constitution but to mitigate the adverse impacts of the proposal that is based on the constitution. That is now probably the unenviable task of the Council and the House. Perhaps the HoF should, in this case, make a deliberate political decision to bound itself with the recommendations of the CCI. And hopefully the CCI surprises us not by predictably giving the license to extend the terms of the office of the current administration but also include a narrowly tailored guideline on how the country should be governed until the next elections are held. It must introduce constitutional principles lest the incumbent abuse state institutions to develop unfair electoral advantages over challengers. AS

_________________________________//___________________________________

Editor’s Note: Yonatan T. Fessha is Professor of constitutional law, University of the western Cape. He can be reached at yfessha@gmail.com