Banging the branches in the constitutional puzzle

Admittedly, the current request is much more amorphous than the instances in which the HoF issued an advisory opinion, as the HoPR is not seeking advice on whether a specific plan or proposal (for example, a federal family code) would pass a constitutional list. The current request is unique in that it is completely open and exploratory, potentially opening up the possibility of a range of constitutionally plausible responses, rather than a single response. Therefore, there is no guarantee of precedent that the application will be accepted, despite the momentous occasion.

In contrast, the proclamation regulating the ICC, no 798/2013, has no provision authorizing the ICC to issue an advisory opinion. Some commenters have indicated that Article 3 (2) (c), which allows one-third of the members of a federal or state legislature, or the federal or state executive to file a request for constitutional interpretation on any unjustifiable ‘ [sic] matter “provides the basis for the request for interpretation. However, this provision cross-references and gives effect to Article 3 (1) which clearly refers to challenges to any” law, customary practice or decision of the governmental body or decision of the government official. “As such, under this law, the ICC can only review a law, decision or customary practice.

As indicated, regarding the request for interpretation on the consequences of the postponement of the elections, there is no law or decision. Consequently, if this request could be considered, it may have to be submitted directly to the HoF, not the ICC.

It can be argued that Article 6 of Proclamation No. 251 orders the HoF to send direct requests for constitutional interpretation to the ICC. As such, a procedural technicality should not be used to delay the resolution of the critical issue. This would be inaccurate. Discretion in accepting a request for an advisory opinion is essential and is a filtering mechanism that allows the HoF to consider a variety of factors, including non-legal factors.

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The decision to seek an advisory opinion is inherently political, making it a decision to accept it or not. As a primarily legal entity, the ICC may not be adequate to exercise this discretionary power. Leaving the initial decision to the HoF would also isolate the JRC from the selectivity allegations in the exercise of discretion. Therefore, Article 6 of Proclamation No. 251 should not necessarily be understood as justifying the delegation of the discretionary decision to accept or reject a request for an advisory opinion.

If this line of argument is accepted, the ICC must rely directly on the apparently broader Amharic version of Article 84 (1) of the constitution that empowers it to resolve constitutional “problems”; Or you may have to reject the request and advise the HoPR to send the request to the HoF instead. The HoPR and government can then choose a course of action, which could then be challenged as unconstitutional, or submitted to the ICC / HoF for abstract review; or redirect the request for an advisory opinion to the HoF.

While the matter may eventually return to the ICC, and this result would simply delay the resolution of the matter at a time when time is of the essence, respect for legality and the need to isolate the ICC from undue politicization may justify it.

Need for constitutional interpretation

Suggesting that the constitution is clear and needs no interpretation does not exclude the ICC from receiving the request, if only to confirm this position. A finding that there is no need for constitutional interpretation is itself an exercise in interpretation. In any case, while the relevant constitutional provisions may appear clear in isolation, a constitutionally defensible outcome requires reconciling the logic, interaction, and implications of the various provisions. Once the ITC / HoF claims the mandate to issue an advisory opinion on the current application, the need for constitutional interpretation is evident.

Substantive issues: possibilities for the interim government

When procedural hurdles end, substantive engagement begins. Even if ITC / HoF claims that there is a need for a constitutional interpretation and that they have a general mandate to issue an advisory opinion, they still have the discretion to reject the request in this case.

If the ICC / HoF rules that they are mandated to issue the advisory opinion and agree to issue an opinion on the current matter, there are a range of different results.

Possibility I: elections cannot be postponed

First, although the possibility of postponing the elections is presented as a fait accompli, it is not a fact that the ICC / HoF would rule that the current constitution allows such postponement. If they rule that procrastination is not allowed by the constitution, there would be no choice but to amend the constitution to determine the circumstances under which the mandate of parliament and / or government may be extended, by whom, through what procedures and how long in every occasion and / or in total.

Possibility II: elections can be postponed

If the HoF / ICC rules that the proper interpretation of the relevant constitutional provisions allows the postponement of elections beyond the five-year period in exceptional emergency circumstances that interrupt the organization of elections, they have to determine the consequence of such postponement. One result is absolutely necessary, and that is that the government has to continue; the question is only in the form that it could take.

1. Parliament dissolves and government continues as caretaker

A possible consequence of the postponement of the elections is that the parliament is dissolved, while the government continues in a caretaker role. This would be analogous to the result of the dissolution of parliament before the end of its mandate under Article 60.

This solution could be constitutionally plausible, but only if there is certainty that there would be no need to renew the emergency, since the renewal or issuance of a new emergency would require the approval of the HoPR. Given the inability to exclude the possible extension of the emergency, as health professionals have warned of a possible increase in COVID-19 cases even after countries have allegedly reached the ‘peak’, it was not You can avoid the need for renewal or issuance of a new emergency. . As such, parliament must also continue.

A government janitor role in the middle and after an emergency may also be inappropriate. The logic of an interim government, which seeks to cover up the role of government, is incompatible with the logic of an emergency, which requires a proactive government not only with a full mandate, but also exceptional powers. In addition to this logic, the unique circumstances in which the country finds itself amid geopolitical disputes over Ethiopia’s Great Renaissance Dam and in Horn of Africa politics can militate against a provisional government.

2. Parliament is dissolved, the government continues with full powers.

This possibility would solve the problem of having a weak government at a time of need for a proactive and strong response. However, it would not solve the problem that may arise in the event that it is necessary to renew the state of emergency or issue a new one before the elections.

Furthermore, it is unusual for a government to exercise full, even exceptional, powers without the corresponding accountability mechanism that parliament is designed to provide. In the absence of parliament, the public deliberation that should inform decisions and policies would be undermined.

3. Both parliament and government continue to have full powers

This third possibility would allow parliament and the government to continue with full powers, including the powers to suspend constitutional guarantees in case of emergency. This option would address the challenges in the two previous possibilities.

Furthermore, the continuity of parliament would at least provide an appearance of government political responsibility.

This is the option that has been applied in practice in relation to the Addis Ababa City Administration and local elections, which have been repeatedly and controversially postponed. In all of these cases, the existing legislative and executive bodies simply continued. Although the terms and status of these entities are not specifically defined in the constitution, as is the case with the federal legislative bodies, and even if the deferrals occurred in an authoritarian context, the experiences can be seen as a precedent.

Theoretically, these three possibilities could be constitutionally defensible to varying degrees; It is true that the third option more than others. The presence of different possible possibilities, rather than the clarity of constitutional provisions prohibiting the extension of the government’s mandate, may tempt the ICC / HoF to reject the request for an advisory opinion. This would force the government and HoPR to choose one of these options, potentially opening up possibilities for negotiation between the government and the opposition on the way forward, while remaining within the scope of the constitutional framework. In the event that someone questions the chosen measure, the HoF and ICC will be required to exercise a more natural adjudication function.

Postponement for how long?

The second substantive issue in the request for constitutional interpretation relates to the time within which elections must take place after the circumstances that have required the end of the state of emergency. It is important to clarify from the beginning that this is not a problem of how long the emergency can last. The duration of the emergency can only be determined by the Council of Ministers, with the approval of the HoPR.

Given the lack of information, capacity and resources of the ICC and HoF, it is practically unimaginable that they easily provide a specific answer on the period of time between the end of the emergency and the elections. Instead, they can be expected to determine the entity that can determine the time period and can offer some guidance on how the decision should be made.

Who decides?

In entity terms, in accordance with Article 93 (4) (b and c) of the constitution, the power to determine the restrictions to constitutional guarantees during an emergency is vested in the Council of Ministers. In fact, the current state of emergency approved by the HoPR opts for a flexible approach and largely leaves the necessary restrictions and measures to the Council of Ministers.

However, considering the fundamental nature of the right to vote as the epitome of the sovereignty of the people, and that the HoPR is the ‘highest authority’ at the national level, the JRC / HoF may decide that the decision on the postponement of the vote will Elections, as well as the exact length of the preparatory period for elections, must be held by the HoPR itself, rather than by the Council of Ministers.

Based on what?

The right to vote and the periodic renewal of the mandate of political institutions is at the heart of a democratic dispensation. Therefore, the period of postponement of elections should be only to the extent absolutely necessary to allow adequate preparations for elections in order to ensure competitive, free, fair and informed elections for the electoral board and the public, as well as for political parties, in particular opposition entities.

Therefore, the ITC / HoF could be expected to find that the determination of the period between the end of the emergency and the date of the election should reasonably consider the needs of the various stakeholders. In recognition of guaranteeing the legitimacy of the elections, the ICC / HoF could specifically demand that the decision be based on the NEBE proposal, after consulting with the ruling and opposition parties, with the duty to provide a public explanation of any change. to the proposal of the electoral board.

Walk through the branches: guarantees before warnings

Fundamentally, the dispute within the constitutional framework revolves around two issues, and the controversy over interpretation, therefore, may simply be spinning. The first concerns the opposition’s concern that the decision to end or renew the state of emergency could be based on calculations to advance the interests of the ruling party, including a potentially much longer period than can be justified. This concern of the opposition is not unwarranted, considering the absolute dominance of the ruling party.

However, this elephant in the room is not among the problems that will be solved in the constitutional interpretation exercise. Although there is the possibility of making challenging decisions regarding the emergency in the JRC / HoF, it is likely that the government’s evaluations in this regard will differ, considering their lack of sufficient information, resources and institutional capacity.

A public government guarantee that decisions to end, renew or reissue a state of emergency would only be made after genuine prior consultation with opposition groups, or even agreement by opposition parties, would go a long way to allay concerns in this regard.

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The second underlying issue concerns the period of preparation for the elections from the end of the circumstances that required the emergency. There is concern among some opposition groups that the government may unduly prolong this period, to give (ab) time to use state resources to weaken the opposition; or unduly shorten it to catch the opposition off guard and unprepared (note that even some of the prominent opposition parties have not yet fully re-registered under the new electoral regime). A short period of time could mean that opposition parties have to spend most of their time trying to finalize their legal establishment, rather than strengthening their structures, promoting their platforms, and building their constituencies.

As previously noted, this second topic has been presented for its constitutional interpretation. However, ITC / HoF is unlikely to offer a specific period. A CCI / HoF requirement and / or public government guarantee that a decision on the electoral preparation period would be based on NEBE’s proposals and a genuine prior consultation with opposition groups could lessen the level of mistrust.

Government concessions on these two fronts could secure broad opposition support for the continuation of parliament and full-fledged government during the interim period, an idea that already has the support of key opposition groups.

As the saying goes, difficult cases are great judges. ITC and HoF have the opportunity to restore their records. If procedural innovations, including obtaining expert presentations and hearings, are complemented by a sound decision, the timing of the crisis may indicate a hopeful future for constitutional democracy.

It is important to note that the terms of the regional parliaments (and their governments) are not determined by the constitution. As such, the exercise of constitutional interpretation would not directly and conclusively determine its fate. However, the solutions in relation to the federal parliament and the government are very likely to be repeated for the regions, as part of the measures under a state of emergency.

Beyond the constitutional framework

Although it is important to clarify that these proposals are outside the constitutional framework, it does not follow that they are undesirable or should be rejected. If there is sufficient consensus, it is possible to draw up a new political and social contract, but that would require a constitutional adjustment.

National dialogue

The key between these calls relates to a National Dialogue or a transitional government. Given the fragmented and polarized political discourse, and the impossibility of building a fundamental political and social contract in the government of almost three decades of the former ruling coalition, a National Dialogue may be necessary. While the FDRE Constitution still offers an appearance of political contract, it never really achieved reverence and broad support as a legitimate benchmark. The challenge in Ethiopia is not that an old political agreement has died and that a new one cannot be born, but rather the fact that no agreement was fully born.

While necessary, a National Dialogue should perhaps not occur in the context of a postponed election. Arguably, it is best to ensure that a National Dialogue does not occur alongside or near an election period. Otherwise, short-term electoral calculations are likely to weaken and interfere with the inherently long-term considerations that should permeate such a process.

In any case, a National Dialogue would require a much longer term than any constitutionally acceptable postponement period. Negotiations on who should be part of that process, what should be on the agenda, how decisions will be made and how they will be implemented will likely require a much longer period, even before substantive deliberations formally begin. As such, imminent participation in a National Dialogue may require a constitutional amendment that postpones elections indefinitely. This conduction of a dialogue outside the shadows and the short-term calculations of the electoral periods would allow the deliberations to take place behind a veil of ignorance (since no party could know its level of support with certainty before the elections) which is a precondition for a minimal type of socio-political pact of public spirit, reasoned, considered and empathetic in the form of a new or revised constitutional framework.

In the absence of sufficient time, it is better to leave such a dialogue until after the elections, as the ruling party has insisted. As a compromise, the various political groups could initiate a process to agree on the basic principles that should guide the National Dialogue once the elections are over. This would be similar to the creative two-stage approach taken in South Africa after the formal end of apartheid, where the African National Congress and other opposition groups and the apartheid government agreed to a provisional constitution with 34 broad but applicable principles that formed the basis for a new constitution, which was finally drafted by an elected constituent assembly.

Considering the limited time available before the elections and the electoral fever, the incorporation of such principles in the FDRE Constitution may not be achievable, but this is not an excuse for not starting the process and taking an agreement as far as possible that it would at least enjoy moral strength Such an agreement could involve a commitment by all parties to start the dialogue process as soon as possible, so that the winners of the elections provide sufficient financing and political support, and on who should convene it.

Transitional government

Some opposition groups and commentators have also called for a transitional government. The appeal is based on an assertion that the current government, as well as the previous governments, were illegitimate and maintained their power through a combination of violence, oppression and co-optation.

However, however justifiable the complaint may be, a transitional government would not be acceptable within the current constitutional framework and its application would require a constitutional amendment. Practically, like a National Dialogue, forming a transitional government would require a much longer time frame than the postponement of the elections that the emergency would require.

In any case, the current government has rejected the possibility of a transitional government. It is also possibly inappropriate in the current context where a unified and proactive government is needed to address the challenges of responding to an emergency and changing the geopolitical and international political sphere.

This does not mean that less formal but more inclusive government structures cannot be organized. As I have proposed in another article, the government could agree to a “consultative” government where it would formally give opposition groups the opportunity to present and criticize the proposed policies and decisions before formal approval. This formal opportunity for scrutiny is normally exercised by the parliamentary opposition. But due to Ethiopia’s past pseudo-elections and the authoritarian biases of the former ruling coalition that the Prosperity Party has inherited, there is virtually no opposition in the HoPR. The proposed advisory framework would offset this “original sin” that provides the moral argument to allow opposition groups to have a formal opportunity to contribute to and influence policymaking.

Prime Minister Abiy Ahmed in a recent video message and during consultations indicated that this will not be practical considering the number of political groups. However, this could be addressed using, for example, the Joint Council of Political Parties as the channel of interaction. Therefore, opposition political groups would be required to debate the issues among themselves and propose a common position to the government over a fixed period of time. In addition to improving the legitimacy of public decisions, the exercise could generate a sense of common purpose and cooperation among the political class. This is also in line with the guarantees of the opposition consultations described above in relation to the renewal of the emergency and the determination of the preparatory electoral period.

If the postponement period is short, the government is likely to be reluctant to accept this agreement. However, if this period becomes long, the government that does so can only become politically unsustainable.

Critical Juncture

Ethiopia is at a critical juncture. La controversia sobre el aplazamiento de las elecciones y sus consecuencias ha desencadenado una conversación animada y multidimensional sobre la comprensión de las ordenanzas constitucionales, así como la dirección que debe tomar el país.

Este artículo ha tratado de contribuir a este debate, primero dividiendo los problemas constitucionales en sus partes e identificando posibles vías; discutiendo las causas subyacentes de la controversia constitucional, que requieren garantías políticas independientemente de los resultados del ejercicio de interpretación; y destilando ideas propuestas que quedan fuera del marco constitucional, y deben considerarse a la luz de eso.

Mientras que los debates han generado previsiblemente una retórica acalorada y, a veces, inflamatoria, posiblemente nunca ha habido un momento de reflexión colectiva sobre la constitución etíope. Esta es una experiencia de la que deberíamos estar orgullosos como nación y debemos tratar de emular constantemente si queremos enterrar el fantasma de las constituciones sin constitucionalismo.