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From Hige Mengist to Hige Hager. ከህገ መንሥት ወደ ህገ ሀገር/ስርኣት

PM Abiy and former PM Hailemariam Desalegn holding a copy of Ethiopian current constitution at the national parliament on the day Abiy Ahmed became Ethiopia’s Prime Minister

Leenco Lata, For Addis Standard

Addis Abeba, May 17/2019 – My primary objective in writing this very brief essay is to contend that “Hige Mengist” is a mistranslation of the English term “Constitution” despite the decades-old practice of treating them as synonymous. My contention that Hige Mengist and Constitution are distinct instruments of power leads me to suggest a more promising process of negotiating a genuine Constitution at the present historical juncture. Hige Mengist and Constitution emerge in distinct processes and have differing effects in legitimating a political order.  

My second aim is suggesting a more appropriate alternative Amharic translation of the term “Constitution” and the process of negotiating such a critical democratizing compact. Despite my deficient Amharic and my even more non-existent Ge’ez, I hazard to suggest such alternative phrases as Hige Hager (ህገ ሀገር) or Hige Sir’at (ህገ ስርኣት). I call upon those with proficiency in both of these languages to coin a more fitting Amharic word or phrase for the concept “Constitution”.

My third intention is suggesting the hammering out of a grand compromise on elemental preconditions for the installation of a democratic political order in our country. The most elemental challenge to democratization in Ethiopia derives from the divergent imaginations of the Ethiopian state by the country’s severely divided political class.

There are those within this political class that still consider Ethiopia as an empire almost fifty years after the Imperial order was toppled. Still others insist that Ethiopia is constituted of a single Amharic-speaking nation. Finally, there are those who believe Ethiopia to be a Nation of nations.

One fact must be stated upfront about these controversies. They are not amenable to resolution by merely conducting fair and free elections. The same applies to other related matters, such as Ethiopian national identity, the bundle of rights signifying citizenship, and the proper balance between group and individual rights, etc.   

Distinctions Between Hige Mengist and Constitution

Let me now go on to enumerate the factors that distinguish Hige Mengist from Constitution. First, while a Constitution precedes and brings into being a democratic government, all of Ethiopia’s successive Hige Mengists were preceded and were promulgated by a sitting government. The practice of granting Hige Mengist started in 1931 when Emperor Haile Selassie promulgated the initial one roughly fifteen years after coming to power. Lest anyone consider it as anything but his generous gift, he reportedly and forthrightly asserted at the time ሳንጠየቅ ሳገደድ መልካም ፈቃዳችን ሆኖ ለኢትዮዽያ ሕዝብ ሕገ መንግሥት ሰጠን (roughly translated as “without being asked or coerced, of Our free will, We granted a Higga Mengist to the Ethiopian people”).

The successor of the Emperor, the Derg regime, took thirteen years to grant the Ethiopian people its preferred version of Hige Mengist in 1987.  And it took the present rulers of Ethiopia, the EPRDF, almost four years to promulgate the current Hige Mengist in 1995.

Second, a Constitution and a Hige Mengist affect the rights and duties of the ruled and ruler in very opposite ways. Both the ruled and the ruler are duty bound to abide by a Constitution as it enumerates their rights and duties. One of the crucial roles of the Constitution is constraining the behaviors and actions of the ruler.

On the other hand, a Hige Mengist is an instrument for asserting the power of the ruler without having any constraining impact on its actions and behaviors. The grantor of the Hige Mengist, as the result, has every right to amend, scrap or overhaul it without consulting anybody else outside the narrow ruling circle. And this is precisely what happened in 1955 when the initial Hige Mengist was amended without any public discussion whatsoever.

Emperor Haile Selassie, as the grantor of the first Hige Mengist, was obviously not presumed to subject himself to it. Traditional thinking encapsulated in the Amharic saying ሰማይ አይታረስም ንጉሥ አይከሰስም (roughly translated as “just as one cannot plough the sky one cannot accuse the king”) attests to this presumption and its historical depth. 

His successors, the Derg, had to first form the Workers Party of Ethiopia (WPE) before granting their alternative Hige Mengist. The WPE emerged as the guiding force of Ethiopian society and was, hence, assumed to have a supra-Hige Mengist status consistent with that genre of political systems. The fact that the EPRDF passed numerous laws contrary to the letter and spirit of the present Hige Mengist evidences the same thinking outlasted the Derg. 

Third, while the sense of owning the Constitution is not restricted to the narrow circle of rulers of the day, the ownership of Ethiopia’s successive Hige Mengists hardly extended beyond such a narrow circle. The fact that no one rose up in the defense of the last two Hige Mengists when they were unceremoniously scrapped testifies to this lack of a feeling of ownership. Whether the same would happen if the current Hige Mengist were scrapped remains to be seen.

Fourth, one of the critical roles of Constitutions is transforming the subjects of an autocrat into the empowered citizens of the democratic state by stipulating their rights and duties. The inclusive and emotive process of framing and ratifying a Constitution heralds this change of status. This process enables the concerned population to look back and realize it as an important historical landmark. Persons who were subjects before this historical juncture clearly recognize and celebrate their elevation to the citizen status.

On the other hand, Ethiopia’s successive Hige Mengists failed to herald in such a transformation. All sectors of Ethiopian society were obviously considered the subjects of Emperor Haile Selassie when the first Hige Mengist was enacted. Surprisingly, even the subsequent Hige Mengists did not serve as the political landmark ending the subject status despite enumerating the rights and duties of the populace primarily for cosmetic purposes. 

Fifth and as a result, while a Constitution constitutes a united political community of empowered citizens, Ethiopia’s successive Hige Mengists have failed with this regard. This is evidenced by the raging controversy regarding basic issues such as Ethiopian national identity, the bundle of rights signifying citizenship and other related matters.

Sixth and lastly, a Constitution signals the forging of a compromise between the competing visions and preferences of rival elite groups. On the other hand, the Hige Mengist is tailor made to reflect the aspirations, visions and preferences of whoever was in power at the time of its enactment. A Constitution is a compact binding together the empowered citizens of a democratic state.  All of Ethiopia’s successive Hige Mengists, however, were promulgated and enforced largely as the assertion of power by whoever was at the helm.

The reasons enumerated above, I have believe, set apart Hige Mengist and Constitution.  The two instruments are distinct in both how they originate and they have differing effects on the concerned society. Consequently, my overall conclusion is that Hige Mengist is not a Constitution.

Evolutionary Trends

Having all of the above, one fact must be emphatically underscored: Ethiopia’s Hige Mengists were not static documents but displayed an evolutionary trend over time in order to account for the local and global pressures prevailing at the time of their promulgation. The granting of the initial Hige Mengist in 1931 was such a novel idea that even members of the ruling aristocracy remained largely uninvolved other than perhaps carefully expressing their misgivings.

The promulgation of the so-called amended Hige Mengist of 1955 was implemented primarily to pave the way for federation with Eritrea and ultimate annexation. Consequently, incorporating aspects of Eritrea’s much more liberal Constitution was mandatory. Hence, the enumeration of an elaborate list of the rights of the Ethiopian populace was necessary despite being constrained with the provision “in accordance with the law” that was rarely enacted.  

The Derg took the unprecedented measure of publicly consulting the peoples with the view of incorporating their wishes prior to the promulgation of its Hige Mengist. However, this effort was marred by a couple of factors. First, because of the regime’s overbearing posture, members of society were not free enough to express their frank opinion. They very likely carefully discerned the preferences of the regime first before echoing them back to it. Second, there were no competing political parties to articulate alternative ideas from which the populace could choose. Nevertheless, the effort to consult the population by itself was a step in the right direction.

It was mandatory for Ethiopia’s current Hige Mengist to recognize and uphold diverse forms of pluralism to an unprecedented extent due to both domestic and global developments at the time of its promulgation. First, domestically at the time, a number of armed liberation fronts were pressing for the right to self-determination of their self-ascribed constituency.

Responding to this demand played a pivotal role in structuring the Ethiopian state as the federation of nations. Consequently, there was no choice but to recognize that the Ethiopian Nation was constituted of multiple nations. This is one version of pluralism that the EPRDF leaders had to recognize and try to uphold at the time they captured central power.

Second, the Cold War came to an end as the EPRDF was capturing central power in Ethiopia. This momentous global development discredited the Marxist-Leninist authoritarian political system, which the EPRDF leaders were in the process of emulating at the time. Due to this unexpected development, EPRDF leaders found it mandatory to recognize and tolerate the expression of political pluralism as well.

However, recognizing and upholding both forms of pluralism ran up against an innate nature of the EPRDF as a successful liberation front. Successful liberation fronts are innately averse to conceding the power they won on the battle field. Hence, EPRDF leaders scrambled to come up with a succession of ideological rationales (revolutionary democracy, dominant party system, developmental statism, etc.) to hang on to power.

As the result, what the EPRDF leaders preached and what they practiced stood totally at loggerheads. This disjuncture between words and deeds was evidently fomenting tensions even within the EPRDF leadership. And this tension came into the open as the result of the massive popular protests of the last years culminating in the change of leadership in 2018.   

 And this new leadership has publicly committed itself to working toward achieving a final breakthrough to a genuinely democratic political order. Prime Minister, AbiyAhmed has rightly laid out a three phase process of moving in this direction. During the first two phases, the tasks necessary for holding fair and free elections would be accomplished. A more legitimate government taking power after those elections would then address the outstanding strategic issues including Constitutional matters.

However, exchanging views on the content and shape of that Constitutional amendment or replacement need not wait until after the next elections but must commence now. It is with the aim of kick-staring that debate that I am writing this piece. What I am envisioning is something reminiscent of the Federalist Papers in which the founders of US federation publicly exchanged views on constitutional matters. Enumerating the subject matter of this debate would be too restrictive for one person to determine. Hence, I have chosen to leave it to the ebb and flow of the debate itself.

As we go about debating the substance and form of a genuine Constitution, let us also seek means and ways to put to rest Hige Mengist and all the authoritarian baggage associated with it. I reiterate my call for the search of a more fitting term for Constitution by those more proficient in Amharic and even better Ge’ez.   

Active popular participation in framing and ratifying a Constitution could go much further than merely instituting a democratic political order. It would afford us a unique opportunity to forge Constitutional Patriotism as the new basis of genuinely uniting our severely divided political class. Let us aspire to make such a transformation a historical turning point that future generations would look back and say “that was the moment when we became citizens of a democratic Ethiopia.”

Meanwhile, upholding the extant Hige Mengist is an imperative that does not need to be stated. Otherwise, we could descend into an unnecessary turmoil that could easily jeopardize the delicate process of political reform on which we have embarked. AS

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