…Ethiopia must enter the next election with sufficient preparation. All ideas must be tested. The preparation requires the amendment of the constitution; the reform of the electoral law; addressing the gulf between the law and reality, and reaching out to clandestine and exiled groups. A careful preview of Ethiopia’s 2010 election sparks a useful and unavoidable debate for the next two years. By Minga Negash and Tsion M. Negash1 …
Constitution and separation of powers: A preview of Ethiopia’s 2010 election
“Ethiopia welcomes any political group at home or abroad for peace talks but only on one condition…That body has first to agree to accept, respect and safe-guard the nation’s constitution…As far as this stand is not changed negotiation with OLF or any other group is impossible. No body can change, improve or negotiate over the Constitution.” Prime Minister Meles Zenawi, Sudan Tribune December 13, 2008. sudantribune.
By the end of 2008 the news that is coming out of the Horn of Africa region is getting more alarming and complex. The geopolitical importance of the region makes the politics of the region to have an international dimension. Furthermore, within the next five years a series of important elections and referendums are expected in the region. In the Sudan the referendum that determines whether the south should separate is due for 2010/11. In Uganda, President Museveni will make another attempt to get a new lease on power. Kenya’s election is next in the series if the fragile coalition survives the period. In Eritrea, the “constitutional debate” will have to resume one way or another. In Somalia the fate of the Ethiopian backed “transitional” government hangs on the balance. The first formal contest for power in the series is Ethiopia’s 2010 election. The examination of the link between conflict, constitution making and election in the context of Ethiopia is therefore an important and timely issue. In this short article we show that (1) A successful election in Ethiopia is very much dependent on how the looming military and security crisis in the Horn of Africa gets settled; (2) within Ethiopia the scars of the May 15, 2005 failed election need to be healed through an all inclusive, consultative, prudent and transparent methods; and (3) Since the result of Ethiopia’s 2010 election will have a bearing on the region, local and international support must be mobilized well in advance of the actual election. Furthermore, in November 2008 Ethiopia has ratified the African Charter on Democracy, Election and Governance. The Charter brings a challenge to opposition organizations, the election administration authority, the parliament and the ruling ethnic coalition that has been in power for the last 18 years. This article examines the link between conflict, constitution making and contestable elections. The aim is to spark a debate rather than provide prescriptions. We analyze the key issues of Ethiopia’s constitution, and attempt to preview the obstacles to conducting successful election in Ethiopia.
By the end of 2008 it is becoming clear that the proxy conflict between Eritrea and Ethiopia is taking a new dimension. The United Nations has removed its peace keeping force; Somalia remained a failed State, the international maritime bottleneck is at the mercy of gun boats; and there are some indications that the Middle East conflict is slowly spilling over to the Horn of Africa. Furthermore, within Ethiopia itself the feasibility of holding a free and fair election remains uncertain. In this respect, in a recent interview the Honorable Anna Gomez, the author of the European Union’s report on Ethiopia’s May 15, 2005 failed election, stated that it is not possible to hold a free and fair election in Ethiopia. Her observation is a chorus of negative assessment that dominates the foreign based Ethiopian websites. Ethiopian Review (www.ethiopianreview.com) carried the following statement from Honourable Gomez.
“…I will never believe in an election in Ethiopia. I think the experience in 2005 shows that despites all the commitment, despite all the rhetoric, clearly Mr. Meles Zenawi did not hesitate to manipulate the election and to steal the election, to perpetuate the party in power. .. So I don’t believe the current regime will be able to organize free and fair elections.”
In this article we attempt to make a dispassionate analysis, follow Einstein’s statement and argue that we can’t solve problems by using the same kind of thinking that we used when we created them [the problems]. We are also inspired by the idea of possibilities rather than impossibilities. Given political will and stability, anecdotal evidence also shows that developing countries can hold free and fair elections; and hence we argue that the factors that were causes for the failure of elections in Ethiopia or elsewhere can be remedied. We argue that an election is an event, and if the process leading to the election is credible, the outcome will also be reliable. In other words, Ethiopia does neither have to be plunged into election related crisis nor should it have a substandard election. To support our argument, we examine the constitution and the structure of governance. We concluded by suggesting series of policy options that spark debate.
Constitutionalism: A beginner’s lesson
The continent of Africa has been facing many challenges for centuries, among them were slavery, dehumanization, unstable, and discontinuous forms of government as well as the imbalances of horizontal and vertical applications of the law, and duties contained under bill of rights which have been enacted in most European and American constitutions to prevent the on going degradation and abuse of human life. The first post independence constitution was therefore a means of emancipation from the legacies of colonialism and a re-assertion of African identity. Nowadays there are very few countries in Africa that do not have a written constitution. In fact many African countries have had well written constitutions when they became independent. The gulf between idealism and realism aside, the effectiveness of these wonderful constitutions was mixed. Many duly elected regimes were overthrown through a series of military coups and armed rebellion of one form or another. The last decade however has seen a return to constitutionalism; though the progress has been at a snail’s pace. Before we go into any depth, we briefly review key issues in constitution making.
In a recent article posted on www.ethiomedia.com, Professor Tesfa Tsion Medhane writing on constitution making in Eritrea, identified three forms of constitutional interpretations; namely the realist approach, the idealist approach and transitional approach. According to the realist perspective, a constitution is an expression of the balance of power, and thus represents what is sanctioned by the existing state of affairs as regards power. It merely divides the spoils between the protagonists, and is therefore not an agent of change and transition. In other words, this constitution is simply an outcome, a contract, and at best resolves a conflict at a point in time. We have seen this type of constitution making/amendments in many parts of Africa; including as a method of resolving the post election crisis in Kenya and Zimbabwe.
In the views of the idealists, Professor Tesfa Tsion states that a constitution represents the end of the old order and heralds the establishment of a new one. Therefore, this type of constitution serves as a foundation for a new political order, and focuses on nation building. South Africa’s post apartheid constitution has this as its dominant feature, rather than a conflict resolution feature. In the third and final view, namely the transitional perspective, Professor Tesfa Tsion focuses on the significance and role of a constitution in times of political transformation. In the transitional view, constitution development is an evolving process, and serves as an engine for law based governance. The constitution is the supreme law, and constitutional sovereignty is its key feature.
One can extend Professor Tesfa Tsion’s work and show that governments in power or State authorities try to justify their actions and without critically examining the consequences of retributions in post conflict situations. The Government of Ethiopia evidently sees the 1991 Charter and the 1993 Constitution as having all the three features, while opposition groups see both the 1991 Charter and the Constitution of 1993 as nothing more than an instrument for dividing the spoils of the then conflict, and the legitimization of the hegemony of the victors. The continuous violation of the rule of law, alienation, prejudice, corruption, as well as the failure and inadequacy of constitutional remedies available at hand for those whose rights have been adversely affected by the State and their subordinates and those acting under them, all seem to be contributing factors to conflict and subsequent crisis. Perhaps the real question should be whether we are avoiding the truth because it is far easier to deny it, since the road to stability and constitutional supremacy is one with twists and turns which would mean that we would have to move away from our ‘comfort zones’, which have been abject poverty, conflict, instability, human rights abuse and opening the door for external intervention.
In view of the previous, the following inference can be made: the absence or lack of separation of powers under the three branches of government; namely, the legislature, executive and judiciary, the inability to implement written rules and recognition for people to showcase their grievances in an independent legal and traditional justice system, which can provide for an appropriate remedy for those who seek justice and not merely see them as derogatory and enemy, one can conclude that the answers are right here in front of us for the conflicts in many parts of Africa; in which the Horn of Africa and Ethiopia are no exceptions.
Separation of powers
According to this principle, a clear distinction is made between the three branches of government, namely, the law making body, the body executing those laws and those whose primary job is to interpret those laws. Accordingly, they are apart although they work together. Therefore, a person or party belonging to more than one of these branches would mean that they exclusively have authority, and may even over ride any decisions made by the “weaker” bodies, because there would be no or lack of balance and checks thereof. This may sound similar to the teachings of Christianity under the concept of the Holy Trinity, where one is three and three is one. One cannot make a law, execute them and decide on the interpretations as well, because in most cases, it would creates chaos and dishonesty and no room for transparency because there is no other impartial authoritative body that is supervising, which is a clear violation of the separation doctrine. We learn these both from the corporate and public governance literatures. The agency theory in finance is nothing more than the re-interpretation of the separation of powers principle, as applied in the context of share companies. Hence, examining Ethiopia’s present constitution from the separation of powers perspective fills a void.
With regard to the Ethiopian Constitution, Honourable Hashim Tewfik, State Minister of Justice, stated the following (See: here.) Minister Twefik claimed that the Ethiopian Constitution establishes a federal political system along with a Westminster style of parliamentary democracy. It divides State power not only between the federal government and nine component regional governments, but also among the three branches of government at both federal and regional levels. Minister Twefik however conceded that although the structure of the constitution provides for separate arms of government, the application of the doctrine of separation of powers, at both federal and regional levels is not total because the executive branch of government is drawn from the legislative branch of government. In other words the Minister confesses that the legislative is dominated by the ruling; which in turn yields a politicized public service and bad governance. By the Minister’s own accounts, absence of separation of powers is a serious defect of the constitution.
The interpretation of the separation of powers principle has to take the legacy of Ethiopia and its cultural dimensions. Ancient Ethiopia had Feteha Negest (literally the justice of Kings), and was often linked to the Royal chronicles. The Fascist occupation of Ethiopia dismantled the Atse State and Post WW II Ethiopia has seen three diametrically opposing constitutions, and a code based legal system. With regard to culture, in individualistic societies the source of power is the vote. In traditional, collectivist and hierarchical societies the source of power is something else. Deconstructing this “something” is important before one mimics activities that are well suited to individualist cultures. One approach is examining the concept of sovereignty. Trying to answer who or what is sovereign in Ethiopia leads to an interesting discourse. Historically, most Ethiopians held the view that the tabot (replica of Moses’ Arc; a key religious object in the age old Ethiopian Orthodox Church) and the kitab (the book), the crown (the King) and the country were inseparable and untouchables; they were (are) holy, feared, respected, not questioned, and therefore indivisible (sovereign). The English thesaurus also defines the term sovereign as ruler, monarch, supreme ruler, absolute, and in its adjective form the term is defined as independent, autonomous and self governing.
The tabot and the kitab are still sovereign. The crown has been removed in a slow motion coup by the military in 1974, and there are no indications that it will come back in the foreseeable future. Notwithstanding this, traditional authority persists in both urban and rural Ethiopia; and no meaningful development work can be done without getting the support of the village head, traditional leader, the chief, the hugaz, the Priest, the Sheik, aba this and aba that. Traditional authority thus had to take side and at times show opportunistic behavior. Similarly sovereignty of the country has also been compromised with the secession of Ethiopia’s coastal province, and the insertion of Article 39 in the 1993 Constitution. Hence, the current argument for the sovereignty of the Ethiopian State and the Constitution of 1993 is founded on a flimsy ground, and a logic that has poor internal consistency. For libertarians the separation of powers doctrine must go hand in hand with a system of government that practices constitutional supremacy. In countries where constitutional supremacy is practiced, its underlying principle would be that no-one is above the law; that the constitution of the land would be the highest law which would be binding on all citizens, and the meaning and role of traditional authority, cultural and economic rights and identities, are defined within the context of an overarching constitution, and not confused with sovereignty of the parliament or senate (House of Federation). The constitution is interpreted by a constitutional court.
One must however remember the systems that governed the apartheid regime in South Africa which had predominantly practiced parliamentary sovereignty. Most legal scholars agree that the apartheid State had the ultimate power, and judges who did not necessarily agree with the governance system of the day were simply removed from office; and thus even the primary function of the courts, which is to interpret the law could not be administered justly due to the fact that government (the executive branch) was sovereign and judges could only make judgments of the validity of laws due to “procedural errors” and hence parliament often made rules to its comfort and suitability. The parliament was in turn controlled by the National Party, the party that legally introduced the apartheid system. Under such a system of parliamentary sovereignty, the underlying principle would be that parliament has ultimate power.
Article 39 of the Ethiopian Constitution declares that every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession. Hence, according to this article, a nation (ethnic/linguistic group), a nationality, and people are sovereign. The premise is that different sovereign groups will make up the “new Ethiopia”, and the House of Federation decides whether the newly constituted country will continue to exist or vanish. In a recent article Mr Ephrem Madebo and Professor Yacob of Unity and Justice Party argued that Article 39 is a danger to Ethiopia’s existence. Ephrem asserts that no Ethiopian would be happy to see an article in the constitution that would potentially reduce the size, political and economic importance of Ethiopia. He compared Article 39 of Ethiopia’s constitution with the American constitution, and correctly argued that unlike Article 39, the US constitution was a joiner in that it provided for the creation and admission of new States. Therefore, if constitutional sovereignty had been a practice in Ethiopia, any court would have allowed the separation of each nation, nationality and people; evidently without the need for the firing of a single bullet. Libertarians and unity seeking forces therefore cannot argue for constitutional sovereignty when the constitution of Ethiopia is in its present form. To reiterate the point, in a country where conflict is the norm, and ethnic politics is rampant, it is difficult to argue for either a constitutional sovereignty or a parliamentary sovereignty. In other words the “Federation” is conditioned by the comforts of the parliament or the Senate. Worse, in the case of Ethiopia, the ruling regime is a coalition of a number of separate ethnic organizations, which in turn suggests that a break up the coalition is tantamount to the break up of the parliament, and eventually the country. In other words, the ruling ethnic coalition (The Ethiopian Peoples Revolutionary Democratic Front, EPRDF) is sovereign.
If however constitutional sovereignty were to be implemented in its entirety, and with provisions for the promotion of admission of regions/States instead of separation, such a constitution has the potential to reunite not only Ethiopia with its former coastal province, but can be a useful instrument for the integration of the Horn of Africa region. In other words, the present constitution of Ethiopia requires major amendments and innovation. In conclusion it is dangerous for Ethiopian political parties to campaign for constitutional sovereignty before Article 39 is replaced with an appropriate clause, and separation of power is clearly indicated in the revised constitution. Furthermore, for the ruling ethnic coalition, the current system works as long as the big brother in the coalition continues to remain powerful. A sudden power shift or exit of a domineering-hubris from ranks of the ruling front has the potential to lead the coalition and the country into disarray. The problem is therefore twofold:- (i) political will from the ruling front, and (ii) filling the void for independent bodies such as those of the Judicial Service Commission (under South African Law) who can make constitutional developments that repeal Article 39 and replace it with an appropriate clause, and can also aid in the independency of the courts (separation of powers) in order for them to act impartial, without fear, favour or prejudice.
In addition to the separation of powers and constitutional rights, another major factor is the right to administrative justice. There is a need for a specific law that clearly puts in place a “remedy” that is available to person(s) whose rights have been adversely affected by such an action or decision or failure to make such an action or decision, where such a person can take up this action for review provided that all the preceding grounds for the review have been met. This means that where the independence of the judiciary is secured, the courts (traditional and modern) will have the power to decide on the decisions and actions (administrative) made by the members of the executive branches of government. Once the courts have decided on the judgment of the action, that decision should be binding on all parties involved as well as set a precedence for future cases. The law enforcement agency cannot continue to ignore the decisions of the court that are in favor of the aggrieved party.
Ethiopia’s 2010 election: A preview
In the previous sections, we focused on constitution making. Elections are nothing more than a means of realizing the aspirations stated in the constitution. Hence, once the constitution and form of governance are agreed, citizens’ next problem is exercising their voting rights in an environment of freedom and choice, and credible system of vote counting. The central question for Ethiopians is therefore whether the next election will be different from the May 15, 2005 election. The answer to this question depends on how one perceives the situation on the ground. Like the Honourable Anna Gomez, armed and clandestine groups argue that free and fair election is impossible. Legally registered parties are uncertain. The amendment of the Constitution is like the chicken and egg argument. For the ruling party, constitutional sovereignty and accepting, respecting and safe-guard the nation’s constitution suggests recognition of the existing order and assertion of authority. For the opposition, constitutional change of one sort or another is a means of achieving at least one of the three objectives of constitution making identified by Tesfa Tsion, and a face saving mechanism. Ethiopian politicians however must bear in mind that they are not confined and imprisoned by shackles on their feet, but rather by the thoughts they have in their mind, which could subsequently lead the public to paralysis.
The May 15, 2005 election in Ethiopia failed not because of the absence of choice, but because there was inadequate preparation for it. Neither the ruling coalition nor the main opposition parties did anticipate the size of the voter turnout and the complexities of conducting contestable elections. The electoral commission lacked the required independence and technical competency. The courts could not decide on election disputes, and worse the matter was referred to a parliamentary committee which has an interest in the outcome of the election. The legal system could not prevail over the politicians, and outlaw the State of Emergency that was declared by the incumbent Prime Minister who was also seeking a new term in office. In other words, Ethiopia was not ready for a free and fair election. With regard to the next election, two factors become important:- (i) the existence of preventive measures that justify the annulment of the next election altogether; and (ii) the implementation of constitutional and administrative reforms that are required for conducting free and fair elections.
The ratification of the African Charter on Democracy, Elections and Governance by the House of Peoples Representatives has come at an opportune time, and hence all parties must commit themselves to the implementation of the key clauses of the Charter. This must be ideally done together with a constitutional reform. Under Article 17, the Charter commits that countries must be bound to, and show their commitment to regularly holding free and fair elections, in accordance with the African Union’s Declaration on the Principles that Govern Democratic Elections in Africa. To this end countries must create and strengthen independent and impartial national electoral commission for the administration of the election; establish and strengthen national mechanisms that redress disputes timely; ensure fair and equitable access to State media, and ensure that there is code of conduct. Article 18 presents the African Union as an observer, supporter and a facilitator for conflict resolution. Hence, filling the missing void is the task of Ethiopian politicians and scholars. In this respect, an important factor that is worth considering is the issue of capacity. If the National Election Board of Ethiopia (NEBE) is skills deficient or deemed to lack independence as was in the past, then there is no particular reason why the administration of election, in total or in part, cannot be outsourced to a credible international body. Credible international auditing firms can be contracted to do the verification process. The efforts of the Ethiopian elders to continuously seek peace, stability and unity must be encouraged and expanded. In conclusion, Ethiopian authorities and political organizations need to appreciate the principles of separation of powers and its link to conflict prevention and the administration of free and fair elections. In other words, Ethiopia must enter the next election with sufficient preparation. All ideas must be tested. The preparation requires the amendment of the constitution; the reform of the electoral law; addressing the gulf between the law and reality, and reaching out to clandestine and exiled groups. A careful preview of Ethiopia’s 2010 election sparks a useful and unavoidable debate for the next two years. This article is a modest contribution to that debate.
1 Minga Negash is a Professor of Accountancy at the University of the Witwatersrand, and Tsion M. Negash is a Fourth year law student at the University of South Africa. Comments are welcome and should be sent to the corresponding author at Tsion.email@example.com.