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By Alemayehu G. Mariam
In Part II, I will argue that the Government of Ethiopia, having drafted model legislation on health emergencies in Proclamation 3/2020, must now continue to postpone and reschedule the federal / regional parliamentary elections of August 29, 2020 by exercising its authority constitutional, which includes, among others, and declaring a state of emergency.
Last week I was pleasantly surprised to learn that the Ethiopian Parliament had decided to listen and consider a report by the Ethiopian National Electoral Board on the unsustainability of holding elections on August 29, 2020 given the COVID-19 crisis. Two weeks ago, when I began to write my comments on the need to take “extraordinary constitutional measures” required by the COVID-19 crisis, I had no idea that the Ethiopian Parliament would take immediate action. I am pleased that Parliament has decided to tackle the issue from the beginning and to provide sufficient time for public dialogue and discussion of available options. In fact, I am pleased to see a solid dialogue between the ruling Prosperity party and the opposition parties. I am also impressed by the high quality of the legal analysis and the constitutional comments. I am also amused by dogmatic and uninformed public dialogue.
I have written these comments on the need to take extraordinary constitutional measures in light of the COVID-19 crisis for three special reasons. First, my goal is to promote and support informed and critical constitutional discussion on urgent and emerging social, legal and political issues facing Ethiopian society.
Second, my goal is to share my knowledge and experience as a teacher and practitioner of constitutional law in the United States.
Third, I want to make sure that the voices of Ethiopians in the diaspora are heard in the constitutional dialogue and debate that is currently taking place in Ethiopia. It should never be forgotten that many Ethiopians in the diaspora have relentlessly fought for democracy, the rule of law and the protection of human rights in Ethiopia. My participation in the defense and promotion of human rights for almost a decade and a half in Ethiopia has been a labor of love. I want to make it clear that many Ethiopians in the diaspora have earned the right through the blood, sweat and tears to comment on the fate of our country. May he never forget that we were the voice of Ethiopia when Ethiopia had no voice, when Ethiopia was silenced, for 27 years. Today, we want to make sure that our views are heard and taken into account in these difficult times and that those who do the heavy lifting in Ethiopia make their decisions about the upcoming elections and the democratic changes that will follow.
It is in this spirit that I share my views in these comments.
Note Bene: This comment is certainly very long. The titles are meant to encapsulate the relevant topic and readers can read each section independently and follow my analysis and arguments. But I do not apologize for the length of the comment. The seriousness of constitutional problems requires a thorough analysis and the incorporation of supporting evidence. Those seeking instant answers to the serious constitutional questions posed in one or two paragraphs will be disappointed. Only those interested in a deep understanding of the issues will likely benefit from my comments. I am aware that there are many interested people who would like to read my comments but are unable to do so due to language challenges. I fervently hope that someone from among my readers can translate this series of comments into Amharic for the benefit of those who do not read English.
Abuse and misuse of extraordinary measures in the form of “state of emergency” declarations in Ethiopia
Historically, extraordinary measures have been taken in Ethiopia in the form of “state of emergency” declarations. In fact, such measures have been synonymous with abuse of power, extrajudicial executions, mass arrests and imprisonments, and, in general, massive human rights violations.
In November 1974, the so-called Derg military regime declared a state of emergency and imposed martial law in Ethiopia. Ad hoc military courts summarily executed former imperial government officials accused of corruption, mismanagement and neglect in the country’s famine. The Derg launched a Red Terror assassination campaign and imprisoned hundreds of thousands of Ethiopians without due process of law. In the late 1980s, the Derg declared a state of emergency in the northern provinces of Ethiopia and imposed martial law that resulted in massive human rights violations.
On May 15, 2005, after the parliamentary elections that day, Meles Zenawi, the late leader of the Tigrean People’s Liberation Front (TPLF) regime in a nationally televised speech declared a state of emergency by personal fiat (without constitutional authority) claiming that he had to take steps to “counter the chaos and fear created by opposition charges of abuse and a threat to reject the results.” Zenawi announced: “Starting tomorrow, during the next month, no protests of any kind will be allowed inside and around the city. Since peace must be respected … the government has decided to place all the security forces, the police and the local militias under a single command responsible to the Prime Minister. “Zenawi immediately contradicted himself by stating:” We do not expect no great danger, but as a government there is a role to play in caring for the peace and harmony of the people. This action is simply a precaution to see that no one is in danger of extinction. ” As a result of Zenawi’s state of emergency, almost 800 people were killed and more than 30,000 imprisoned. A commission of inquiry created by Zenawi himself completely blamed Zenawi and his regime for the excessive use of force.
I joined the Ethiopian human rights movement to vindicate the victims of the Meles massacres in 2005.
On October 9, 2016, the government of the Tigrean People’s Liberation Front (TPLF) issued its Decree on the “State of Emergency Command Post” with the vague pretext that “the situation represented a threat against the people of the country” . That decree was issued in a futile attempt to brutally suppress popular opposition to TPLF ethnic oppression.
I resolutely opposed that declaration of emergency: “The T-TPLF did not declare a state of emergency for Ethiopia. S.O.S. for the “S.S. (Sinking Ship) T-TPLF”.
Since 2009, the TPLF regime, for all intents and purposes, has used its so-called anti-terrorism law (Proclamation No. 652/2009), to impose a de jure state of emergency (by law). Under that “Proclamation”, the T-TPLF created a police state and imposed a kingdom of terror. Thousands were arbitrarily arrested, tortured and murdered on an industrial scale.
When CNN’s Erin Burnett visited Ethiopia in July 2012, she described what she saw in clear terms:
We saw what an African police state looked like when I was in Ethiopia last month… At the airport, it took an hour to clear customs, not through the lines, but through the checks and questions. Authorities repeatedly tried to take us to government cars so they would know where we went. They only relented after forcing us to leave hundreds of thousands of dollars of television equipment at the airport … “
On March 19, 2017, the TPLF government announced that it had lifted three elements of the state of emergency that had to do with arbitrary searches, searches and curfews.
On March 30, 2017, the TPLF government authorized a four-month extension of the state of emergency, absurdly arguing “82 percent of Ethiopians want a partial or total continuation of the state of emergency.” More than 25,000 people suspected of participating in protests were detained under that state of emergency.
I resolutely opposed the extension of the state of emergency. I warned the TPLF that they will never be able to contain the volcanic eruption of anger and frustration of the people when declaring a government in a command post.
In June 2018, Prime Minister Abiy Ahmed permanently lifted the state of emergency and opened the political space for all contenders, including those declared terrorists and sentenced to death in absentia, to return to the country and help build a democratic governance process. .
Let the facts speak! Let’s not lie to ourselves!
The history of the state of emergency in Ethiopia for the past three decades has been one of state terror against citizens.
Ethiopia has been under a de facto or de jure state of emergency since May 28, 1991, the date the TPLF rebels marched from the bush in the capital Addis Ababa until April 2018. That was the primary means TPLF used. to impose your will. The people of Ethiopia.
The unfortunate fact is that civilian and military dictators in Africa have ruled by a state of emergency declaration for far too long.
In 2011, Tunisia declared a state of emergency after the unrest caused by the economic problems that led to the Arab Spring.
Egypt was governed under a permanent state of emergency for 32 years, in fact a military dictatorship, which gave the security forces powers of arrest, detention and prosecution in special courts until it presumably ended in 2012. It seems the permanent state of emergency continues in Egypt today when President Abdel-Fattah el-Sisi managed to remain president for life, at least until 2030.
In 2013, Nigeria declared a state of emergency for all states in northeast Borno, Yobe and Adamawa due to attacks by the terrorist group Boko Haram.
In 2016, Namibia declared the last state of emergency due to an ongoing drought.
In 2017, Zambia declared a state of emergency after a fire that destroyed the country’s largest market in the capital, Lusaka.
In 2019, Sudanese President Al Bashir declared a one-year state of emergency and dissolved the country’s central and state governments and replaced them with military leaders. He was subsequently overthrown, which declared a state of emergency.
In 2019, Sierra Leone declared a state of emergency for the widespread cases of rape and sexual assault in that country.
Why am I supporting a state of emergency declaration to postpone the August 2020 elections?
It is a good question to ask why I would urge, not just to support, postpone and reschedule the August 2020 elections by declaring a state of emergency or other constitutional mechanisms given my history of opposition to such declarations.
First, COVID-19 has been a global game changer. The pandemic has shaken the global economic system to the core. Even the most advanced industrialized countries are unable to resist the chaos and dislocation created by COVID-19. The world has been reduced to a global village and the fate of intertwined villagers. The countries have tried to face the COVID-19 crisis by taking extraordinary measures. As I demonstrated in Part I of my comment last week, the Government of Ethiopia drafted and implemented Proclamation No. 3/2020 (“State of Emergency Proclamation promulgated to counter and control the spread of COVID-19 and mitigate its impact” ). I am not going to repeat those points here.
Secondly, as an unconditionally constitutionalist, I would like to see the Ethiopian Constitution serve as an instrument of work, life and breathing for the government. Since its adoption in 1995, the Ethiopian Constitution has been abused and mistreated by the TPLF regime to practice “constitutional dictatorship” in the form of a state of emergency or command post government. The Constitution served and protected only the interests of the TPLF. For everyone else, the Constitution was not worth the paper it was written on. The maxim of the TPLF was always “Justice for us”.
While I think the Constitution needs a massive overhaul, the fact remains, paraphrasing a military metaphor from former United States Secretary of Defense Don Rumsfeld, “You solve a constitutional issue that you have, not through a constitution that you want or want to have another time. ” . “There are multiple responses in the Ethiopian Constitution to address the question at hand.
Third, the government of Prime Minister Abiy Ahmed has repeatedly declared its desire, desire and determination to hold free and fair elections on numerous occasions. That commitment is irrevocable in hell or at peak. In fact, for that to be possible, from the beginning the government has completely opened up the political space allowing organizations and individuals previously declared “terrorists” and “criminals” to participate peacefully. The government has even tolerated, in the face of enormous public pressure, individuals and organizations that have openly and blatantly disobeyed the law in the interest of social harmony. No government that intends to impose a dictatorial regime would allow the opposition that swears violence and force to participate in the democratic process. That gives me great confidence that postponing the elections for 6 months will not lead to abuse of power or violation of human rights.
Fourth and most importantly, the government of PM Abiy is committed to the principles of the rule of law, inclusion, due process, problem solving through dialogue in free and open forums and full responsibility and transparency. Even substantial and credible evidence (no stomach, gnashing of teeth, messing, whining and pointing) On the contrary shown, I will grant the full benefit of the doubt to the government on the basis of what it has done to date to protect human rights, institutionalize the rule of law and promote free and fair elections.
Fifth, unlike Ethiopia, many governments have criminalized reports on COVID-19. The Egyptian government made reporting on COVID-19 inconsistent with the government’s narrative a crime. Amnesty International reported: “The Egyptian authorities have made it very clear that anyone who defies the official narrative will be severely punished.” Other countries that have criminalized COVID-19 reports under a state of emergency decree include Iran, China, Hungary and South Africa, among others. Rodrigo Duterte shut down the largest television network in the Philippines because he did not like the way the station reported on COVID-19.
Unlike, in Ethiopia, pursuant to Article 7 (2) of Proclamation 3/2020, requires private media to report on COVID-19 and participate in public education programs aimed at mitigation. If the Ethiopian government were interested in abusing power under a state of emergency decree, Proclamation 3/2020 would have provided it with its best pretext. But the Ethiopian government decided to fight the COVID-19 war with full responsibility, transparency, and media scrutiny. I am very impressed by that commitment. But I hasten to add that the media have a great responsibility in their role as “watchdog”. It shouldn’t be a problem for providers of lies, fake news and misinformation.
Understand the legal fact of the “state of emergency”
In my conversations with Ethiopian academics, activists, and Ethiopian political leaders, I have concluded that most of them are unaware of the legal nature of a “state of emergency” or the declaratory legislative act that makes it a reality. In fact, I am surprised that many confuse the state of emergency declaration with martial law. Although the state of emergency declaration can be used to impose martial law, it is different in the fact that, according to martial law, the military assumes direct functions of the ordinary civilian government that institutes the military administration, as was the case during the Derg regime in Ethiopia.
The modern idea of ”state of emergency” has its roots in Roman antiquity in which a “Roman magistrate with extraordinary powers during an emergency” was appointed. In fact, “in the fifth and fourth centuries, the dictatorship was also used to solve internal problems, for example, to hold difficult elections or resolve a constitutional crisis.” At the start of the “Realm of Terror” in 1793 in the French Revolution, Robespierre and the Committee on Public Safety declared a state of emergency and arbitrarily imprisoned and executed their opponents. It is after the French Revolution that “state of emergency” regimes became common and widespread, especially in the 1920sth century.
There are two general perspectives on the legality of a “state of emergency”. A prominent scholar on the subject argues that the declaration of a state of emergency is a function of sovereignty. According to this point of view, “a political entity should have the right to decide whether to suspend the application of its law on the basis that the situation is abnormal.” The sovereign power can, at its discretion, provoke “a total suspension of the law and then use extralegal force to normalize the situation.” Competitive legal / rule of law opinion argues that legal norms, conditions and standards could be established for a state of emergency declaration with built-in safeguards to prevent abuse of power.
I do not consider the two opinions to be mutually exclusive. I will argue that a state of emergency declaration is inherently a sovereign act, but is most effective when it is sanctioned and legitimized by constitutional or statutory authority. A government can declare a state of emergency when it determines the normal course and the government systems are unable to tackle an extraordinary event. For example, a government facing external aggression, impending domestic insurrection, uncontrolled widespread civil unrest, natural disasters, and epidemics does not necessarily obtain prior legislative approval before acting.
The scope of special emergency powers is determined by the constitution and laws of a given country. In general, a state of emergency declaration can restrict press freedom, prohibit public gatherings, grant military and security forces special powers of arrest and detention without due process of law, authorize extrajudicial searches and seizures, regulate the economy and the operation of companies and the like.
General state practice shows that a country’s constitution or legislation normally describes the circumstances that may give rise to a state of emergency, lists the procedures to be followed and prescribes the scope of authority to be exercised under emergency powers. Typically, the head of the executive branch declares a state of emergency and notifies the legislature within a specified period of time for ratification, or proposes a state of emergency declaration to the legislature for enactment. In some countries, the legislature declares a state of emergency sua sponte.
Most constitutions require well-considered justifications and sufficient facts for the decision to declare a state of emergency and specific measures to address the situation, including: 1) facts that support the existence of extraordinary circumstances that pose a fundamental threat to the country; 2) the legal framework consisting of the constitutional and legislative authority for the implementation of the emergency declaration; 3) the emergency preparedness plan and operational framework for the implementation of the state of emergency for a designated period; 4) specification of an expiration clause or a defined time for the termination of the state of emergency; 5) provisions for further extension of the state of emergency and related procedures; and 6) procedures for post-emergency review and accountability. .
It is of utmost importance that in a state of emergency, full control and responsibility for government operations and functions remain in the hands of civil authorities. Military, police, and security agencies must be subject to full civilian control or civilian supremacy. The alternative is a slippery slope to martial law.
Most parliaments also have the power to review the state of emergency at regular intervals and suspend it as necessary.
In most national constitutions, including the United States, no person has the exclusive authority to declare a state of emergency. Although a president or prime minister may initiate a state of emergency declaration, it is often the case that parliament and in the United States, Congress, have the power to issue the declaration or ratify it retroactively as the assertion of US President Abe Lincoln of vast presidential war powers during the civil war is instructive. In 1861, Lincoln asserted as commander-in-chief that he had the power to “take whatever action he could subdue the enemy,” declared martial law, and suspended the writ of habeas corpus by presidential decree and authorized the trial of civilians by military courts. . He stated: “In an emergency, I can do things for military reasons that Congress cannot constitutionally do.” Subsequently, Congress ratified Lincoln’s actions.
State of emergency declarations must comply with international law
State of emergency declarations often involve restrictions on the course of social, economic, civil and political activity and reduce civil liberties and freedoms. The main concern is always the abuse and misuse of a state of emergency by the ruling regime that issues the declaration to repress the opposition, dissent and human rights. All states should have an interest in ensuring that the declaration and implementation of states of emergency are subject to certain limitations and proceed in accordance with international standards.
Ethiopia became a party by acceding to the International Covenant on Civil and Political Rights (ICCPR) in June 1993. Article 4 of the ICCPR allows states “in a time of public emergency to take measures that derogate from their obligations hereunder Agreement to the extent strictly required by the demands of the situation, ”subject to notification by the Secretary General of the United Nations.
According to the ICCPR, there are additional requirements that states must meet to justify a state of emergency declaration:
1) must be backed by substantial evidence of exceptional, real and imminent threat to the nation; 2) the declaration must not deny the principle of the rule of law or encourage State action in violation of the principle of the rule of law; 3) must not approve or approve violations of fundamental non-derogable human rights principles, including the prohibition of torture, freedom from slavery, freedom of thought, conscience and religion and the right to recognition before the law, the humane treatment of all people deprived of their liberty, propaganda ban that defends war or national, racial or religious hatred; 4) citizens must be fully informed of the facts and the legal basis of the declaration; 5) The state must notify the appropriate treaty oversight bodies under Article 4; 6) the goal at the end of the limited state of emergency should be to ensure a rapid return to normality and the restoration of the constitutional order in which rights can be fully guaranteed again; 7) Whatever the emergency situation, the post hoc powers of parliament, that is, the right to carry out investigations and investigations into the execution of the emergency powers, must be guaranteed by law. This is important both for evaluating government behavior and for identifying lessons learned for future emergencies.
The United Nations High Commissioner for Human Rights has recently published detailed guidelines on the declaration of a state of emergency required by the COVID-19 crisis that incorporates the language of the ICCPR treaty. An adequate state of emergency declaration must be 1) “strictly temporary in scope”; 2) “less intrusive to achieve the established public health objectives” and 3) “include safeguards such as suspension or revision clauses, to guarantee the return to ordinary laws as soon as the emergency situation ends.”
Declaring or not declaring a state of emergency to postpone the August 2020 elections is NOT the issue
On March 31, 2020, the independent Ethiopian Election Commission (Art. 102, Constitution of Ethiopia) issued a statement that “due to issues related to the coronavirus, the board decided that it could not conduct the elections as planned … by which decided to cancel that calendar and suspend all activities. ” On April 30, Commission President Birtukan Mideksa formally informed the Ethiopian parliament that, given COVID-19, it is “impossible” for her commission to do vital preparatory work for a free and fair election. Due to COVID-19, the Commission was unable to carry out voter registration and education, preparing ballots and distributing election materials, organizing election observers, and training election workers, supervising the nomination of candidates, supervising activities campaign, organize voting tables and other related essential functions.
It is evident to all reasonable minds that the August elections cannot proceed with the COVID-19 crisis that turns the country’s social, economic and political system upside down. It is foolish, downright reckless and dangerous to even suggest that large-scale election campaigns and election preparations may continue given the great uncertainties in the spread of COVID19 in Ethiopia. Due to the deep uncertainties in the growing COVID-19 crisis, the need to dedicate all available material and human resources for its prevention, treatment and mitigation, the need to effectively deal with the social and economic dislocations caused by the crisis and, Ultimately, to ensure a free and fair election that can resist international standards and the scrutiny that the election must be postponed for a reasonable period of time or until the threat of a pandemic is declared minimal for normal processes to continue.
Unfortunately, the constitutional calendar cannot be met due to the force majeure of COVID-19. To proceed with the August elections, you would be playing Russian roulette on the heads of 110 million Ethiopians with a fully loaded weapon. Incalculable numbers of people could die and the resulting impact on society would be catastrophic.
The question is not whether a state of emergency can be declared to postpone the elections of August 2020. The question is how to postpone the election with a public dialogue that maximizes responsibility, transparency, inclusion and collective concern for the public good. .
The constitutional matrix for the postponement of the elections of August 2020
Mamo Mehretu has summarized the various suggested options in four dimensions: 1) The current government remains with a limited mandate as “caretaker” after the dissolution of parliament; 2) The current government extends the term through a state of emergency and enjoys a full regular mandate; 3) clarification can be obtained through a constitutional amendment; and 4) refer the question to the Constitutional Research Council of the Federation Chamber, for its constitutional interpretation and final determination. Ethiopian legal experts have studied the problems and made their recommendations.
Transitional government?
First, let me dismiss two arguments that claim that there are no constitutional options to postpone the election. Proponents argue that the only solution is political and insist on the formation of a “transitional government.” En segundo lugar, los líderes de TPLF han proclamado que pueden organizar y organizar sus propias elecciones en la región de Tigray “porque no habrá un gobierno legítimo después de septiembre de 2020” cuando termine el mandato actual de cinco años para el parlamento actual.
In Agosto 1991, Escribí un comentario sobre las propuestas del TPLF para un “gobierno de transición que refleje las diferencias de opinión, intereses y aspiraciones de los pueblos del país”. El difunto líder del TPLF, Meles Zenawi, dijo que los problemas de Etiopía surgieron de la “negación de los derechos democráticos” y pronunció el fin de un “sistema injusto que relegó a las personas a la condición de ciudadanos de segunda clase en su propio país”. El “gobierno de transición” TPLF condujo a una dictadura TPLF de 27 años en Etiopía.
En 2015, sostuve que Etiopía necesita “una transición exitosa de la dictadura a la democracia constitucional. Los etíopes necesitan practicar las artes del discurso civil y las negociaciones. A pesar de lo difícil y vergonzoso que es admitirlo, muchas élites etíopes de todos lados parecen sufrir de una cultura de inflexibilidad y espíritu de juego de suma cero “. En otras palabras, aquellos que clamaron por un gobierno de transición en 2015 y aquellos que lo claman hoy ni siquiera pueden sentarse y tener una conversación sobre fútbol y mucho menos un diálogo significativo sobre el importante tema de formar un gobierno de transición. Ninguno de los “líderes” que instan públicamente a la formación de un gobierno de transición hoy tienen credibilidad y son conocidos por su falta de honradez, duplicidad y mendacidad.
Un “gobierno de transición” durante seis meses hasta que se puedan celebrar nuevas elecciones es absurdo y sin sentido.
Manifiestamente, los defensores de la formación de un gobierno de transición son ingenuos, ignorantes, ignorantes o los tres. Los gobiernos de transición no se forman en un día o incluso un mes. Son ejercicios extraordinariamente difíciles y a menudo inútiles. Hay muchas empresas preparatorias que deben preceder incluso antes de que las partes para formar dicho gobierno se reúnan para la discusión. Se deben establecer intermediarios independientes de terceros. Los temas polémicos de la agenda deben ser negociados. Los términos de poder compartido deben redactarse y distribuirse. Los grupos y líderes contendientes deben seleccionarse utilizando criterios que puedan ser polémicos. Se deben establecer plazos y horarios y se deben hacer otros arreglos logísticos.
Hablar de un gobierno de transición es una pista falsa, un tema irrelevante introducido para desviar la atención del público.
Los proponentes de un gobierno de transición en Etiopía deberían estudiar cuidadosamente la experiencia de Sudán del Sur.
En 2015, los líderes de facciones rivales en Sudán del Sur firmaron un acuerdo para crear un gobierno de transición, que ni siquiera duró hasta que se acabó la tinta del acuerdo. Because of the failure to implement that agreement, hundreds of thousands of innocent South Sudanese died in factional violence and massive human rights violations were committed by both sides.
In 2019, pressured by the U.N and the U.S., the South Sudanese leaders again agreed to form a transitional unity government to end a five-year civil war.
It was not until February 2020, barely two months ago, that the South Sudanese were able to implement a transitional government agreement. How long that will last is anybody’s guess.
The proposal for a transitional government for Ethiopia until the next election, following postponement of the August 2020, is an invitation to anarchy, disorder, lawlessness and mobocracy.
Those who are howling for a transitional government in lieu of postponement of the August 2020 election are either willfully ignorant, think they can steal their way into power in the chaos of a transitional government or both. Truth be told, what these “leaders” want is not a transitional government. They want to create chaos in government so that they can transition themselves into power.
The TPLF’s plans for an illegal regional election
The TPLF’s proclamation that they will proceed to have elections in August 2020 in complete disregard of the mandate in Article 102 of the Ethiopian Constitution shows the utter hypocrisy and abysmal duplicity that is coded in their DNA. Article 102 provides, “There shall be established a National Election Board independent of any influence, to conduct in an impartial manner free and fair election in Federal and State constituencies.”
The TPLF has always been a fair-weather friend of the Ethiopian Constitution. They will pontificate and defend the Constitution when it suits their purposes and throw it away like a dirty rag when they are held to account under it.
The TPLF Central Committee Official Statement on the Occasion of the 45th Anniversary in February 2020, barely two months ago, proclaimed:
Institutions and institutionalism are being destroyed. Reversal of the country’s achievements accompanied by monstrous violations and actions in both the economic and the political fronts are prevalent. The Constitution, which is the only reliable savior of the country, is violated and rule of law is endangered…The continuity of the country is guaranteed only when the Constitution and the federal system of governance are respected. Thus, we assure you that TPLF will work with you in strengthening and scaling up the struggle you have already begun to save the Constitution and the multinational federal system.” (Boldface added.)
In May 2020, the TPLF is caught red handed destroying institutions and institutionalism –indeed, the most important institution of democratic election – established under Article 102. When the TPLF invokes the Constitution to suit its purposes it is “the only reliable savior of the country.” When it does not, it is not worth the paper it is written on.
The proclamations of the TPLF merchants of lies, deceit and duplicity remind me of lines from Shakespeare’s Merchant of Venice:
The devil can cite Scripture for his purpose.
An evil soul producing holy witness
Is like a villain with a smiling cheek,
A goodly apple rotten at the heart.
O, what a goodly outside falsehood hath!
So, the TPLF Princes of Darkness can cite the Constitution for their own purposes with a smiling cheek!
In 2006, I wrote a commentary severely criticizing the TPLF regime for its failure to respect its constitution in the treatment of the Kinijit Party defendants and others. One of the charges against those defendants was violation of Article 238 of the Penal Code (“Outrages against the Constitution or the Constitutional Order”). Suffice it to say that the TPLF proclamation to hold a regional election in Tigray in violation of Article 102 of the Ethiopian Constitution and a flagrant violation of Article 238 of the Penal Code (“Outrages against the Constitution or the Constitutional Order”).
I am not surprised by the TPLF’s threat to breach the Constitution for two reasons. First, since its adoption in 1995, the Ethiopian Constitution has been abused and misused by the TPLF regime to practice “constitutional dictatorship” in the form of a state of emergency or command post government. The Constitution served and protected only the interests of the TPLF. For everyone else, the Constitution was not worth the paper on which it was written. The TPLF’s maxim was always, “Justice for Just Us.”
Second, the TPLF was established for the single purpose of creating a “Tigray State”. In its Manifesto, the TPLF declared its mission is to create an independent Tigray State. The TPLF claimed Tigray was invaded by (Emperor) Atse Menelik and became an Amhara colony. When the TPLF was in power, its core strategy was to systematically cleanse Ethiopian national identity, history and consciousness. It is a fact that the TPLF has NEVER repudiated its Manifesto.
In the 1990s, the late Meles Zenawi was fond of saying that without his guiding hand and TPLF leadership, Ethiopia will go the way of Yugoslavia. Balkanization was Meles’ dream for Ethiopia. It is the TPTLF’s dream today. For a quarter of a century, the TPLF toiled day and night to carve up and chop up Ethiopia to facilitate and prolong their rule.
Having failed to dismember Ethiopia, the TPLF now prepares to dismember Tigray from Ethiopia by holding an illegal election. (Aya jibo, satamehagne bilagn.)
No one should be surprised. What the TPLF is doing by conducting its own illegal election is simply to use the current so-called constitutional crisis to implement their dream of a “Tigray State” foretold in their Manifesto. They will fail!
We must be clear about the constitutional issues at hand
The constitutional question on the delay and postponement of the August 2020 election arises from an apparent lack of clarity in Article 58 (3) of the Ethiopian Constitution which mandates, “The House of Peoples’ Representatives shall be elected for a term of five years. Elections for a new House shall be concluded one month prior to the expiry of the House’s term.” Unfortunately, Article 58 does not expressly anticipate postponement or delay of elections or provide for extraordinary circumstances that could prevent an election as prescribed in the timetable.
The current term of parliament expires by the end of September 2020, which means under Article 58 (3), the election must take place by the end of August. The problem is such an election cannot be held within the constitutionally prescribed time frame because of the COVID-19 crisis.
The question is what constitutional mechanism are available to address the apparent lack of express language authorizing postponement or delay of an election under Article 58?
The experience in American constitutional jurisprudence should prove instructive in this regard.
The U.S. Constitution contains 4,543 words, including the signatures and with the 27 amendments comes to a total of 7,591. The Constitution “phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text…”
The 19th century British Prime Minister William Gladstone said, “The American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.” I agree and am very proud to have had the privilege to teach, practice and defend it in the highest state and federal courts of the United States.
In contrast, the Ethiopian Constitution barely three decades-old and contains 13,625 words by my count. It needs much refinement and careful redrafting.
The 1787 U.S. Constitution does not designate a branch of government to definitively resolve constitutional questions and issues. Article III which creates the judicial branch does not grant the Supreme Court the express power to review the constitution and render a definitive interpretation.
In 1803, in Marbury v. Madison, arguably the single most important case in American legal history, the U.S. Supreme Court case established the principle of judicial review. Justice John Marshall declared it was the exclusive duty and responsibility of the judicial branch to interpret and apply the language of the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” including the supreme law of the land. With that case, Marshall managed to establish the power of the court as the ultimate arbiter of the Constitution. The U.S. Constitution has been developed through interpretation and re-interpretationby the courts.
Unlike the U.S. Constitution, the Ethiopian Constitution clearly delegates the ultimate power of constitutional interpretation to the House of Federation with investigative powers granted to Council of Constitutional Inquiry. To borrow from Marbury v. Madison, “It is emphatically the province and duty of the House of Federation to say what the constitutional law is and is not.” Indeed, the House of Federation over the past decades has been engaged in “investigating questions of constitutional interpretation from various individuals and sections of the society.”
Article 62 (1) provides, “1. The House has the power to interpret the Constitution.”
Article 83 (1) “All constitutional disputes shall be decided by the House of the Federation. 2. The House of the Federation shall, within thirty days of receipt, decide a constitutional dispute submitted to it by the Council of Constitutional Inquiry.”
Article 84 (1) “The Council of Constitutional Inquiry shall have powers to investigate constitutional disputes. Should the Council, upon consideration of the matter, find it necessary to interpret the Constitution, it shall submit its recommendations thereon to the House of the Federation.”
Therefore, there is no question that the House of Federation and Council of Constitutional Inquiry have the power to review the issue of delay or postponement of the August 2020 election under Article 58 and render a final determination.
The task of the Council of Constitutional Inquiry are spelled out in Article 84(1) of the Constitution (which empowers the Council to “investigate constitutional disputes”) and Proclamation 798/2013. The Council is established as an independent body (Art. 15) consisting of the President and Vice President of the Federal Supreme Court as chair and vice chair respectively, six legal experts of high standing appointed by the President of the Republic on recommendation by the House of Peoples’ Representatives, and three persons designated by the House of the Federation from among its members.
Under Article 3 of Proclamation 798, the Council has the power to consider and review for constitutionality “any law or customary practice or decision of government organ or decision of government official” submit its recommendation to the House of the Federation.” Under Article 9, the Council has the power to compel “pertinent institutions or professionals, to appear before it and give opinions.”
The House of Federation and the Council are expected to review issues before them fairly and impartially and with fidelity to the principles of constitutionalism, fairness, equity and justice.
While I am not presumptuous enough to tell the House of Federation and Council of Constitutional Inquiry on how to perform their constitutional responsibilities, I would like to share my experience as a teacher and practitioner of American constitutional law for over three decades. Indeed, I have been privileged to spar in and out of court with some of the highest jurists and academics in America on constitutional interpretation. I trust the Federation and Council will consider my views as part of their deliberation.
In performing constitutional review, I believe the House of Federation must be guided by two questions:
First, in the absence of express language authorizing delay or postponement of an election under Article 54, does a force majeure epidemic recognized under Proclamation 3/2020 provide a necessary and sufficient condition for postponement under Article 93 (a)?
Second, is there an independent constitutional basis to postpone the August 2020 election based exclusively on Article 93 (a)?
The first question requires the House of Federation to interpret Article 54 and determine whether postponement can be obtained consistent with the language and spirit of that Article.
First, let me state that Ethiopia, unlike the United States, does not have a well-established tradition of constitutional interpretation. The U.S. has a rich constitutional history that spans well over two centuries. There are hundreds of thousands of constitutional appellate decisions that serve as precedent and countless numbers of academic and scholarly treatises and critiques on the constitution and how it should be interpreted. Ethiopia does not have the benefit of a well-developed constitutional jurisprudence and scholarship.
In the absence of guiding judicial precedents, doctrines, standards and tests to interpret and fix the meaning of constitutional language, the House of Federation and Council should follow an approach/principle employed widely by American jurists called “Ockham’s razor”, which prescribes the correct answer is often the simplest one. In other words, in their task of constitutional interpretation, the Federation and Council should not waste time engaging in academic and scholastic analysis and debates and be distracted by inconsequential political rhetoric squandering their energies. Rather, their aim should be provide a simple direct answer based on an ordinary understanding of language found in Article 58 and related provisions of the Constitution and render a decision based on reasonable explanations.
In my view, the House of Federation should begin its constitutional analysis NOT by simply focusing on Article 58 but rather by undertaking a structural interpretation of Article 58 within the bundle of constitutional provisions dealing with elections, including Articles 38(1)(c); 38(3); 54 (1), 58(3) and 102(1) (relevant constitutional provision are excerpted at the end of this commentary), the totality of the structure of the constitution and the history of the electoral process since the promulgation of the Constitution in 1995.
The texts of Article 54(1), 58 (3) and 102(1) are clear on the constitutional mandate of ensuring election of members of the House of Peoples’ Representatives for a term of five years in a free and fair elections and for the National Election Board to be the sole organizer and arbiter of such an election. The texts of Article 38 (1)(c) and (3) are equally clear in underscoring the necessity of having elections that “guarantee the free expression of the will of the electors” and that such elections “be conducted in a free and democratic manner.”
The seminal question within the bundle of these provisions is why the drafters of the Constitution omitted contingency language in the event an election could not be held as mandated in Article 58(3). Were the drafters simply unaware of a possibility that could lead to a postponement of an election? Did they intentionally omit it such language? Did they intend to create chaos and anarchy by leaving out a contingency clause?
A fair and reasonable reading of Article 58(3) shows that the language therein was intended to be an ironclad constitutional guarantee that elections will take place as prescribed, and not to preclude delay or postponement under extraordinary circumstances. Article 58 did not provide qualificatory language for postponement or delays because the drafters had already anticipated and provided for such extraordinary circumstances under Article 93, which specifically include external invasion, a breakdown of law and order which endangers the constitutional order, a natural disaster, or an epidemic. For instance, there could be no election if the country is under external invasion. The outcome is the same if the country is facing a pandemic of global proportions.
One of the principal purpose of constitutional interpretation is to harmonize the meaning of constitutional language and to illuminate obscure implications locked in words and reconcile linguistic omissions with intended constitutional purposes to produce fair and reasonable outcomes, and in extreme cases to sever language that is manifestly repugnant to the scheme of the constitution.
The House of Federal and Council of Constitutional Inquiry should consider the constitutional scheme evident in Articles 38, 54, 58 and 102 and obtain a result that harmonizes these provisions in rendering their judgment.
Alternative I- Constitutional basis for postponement of the August 2020 election under Article 93
In my constitutional analysis, the critical issue is not the simple fact of meeting a designated constitutional deadline for an election but most importantly the fact of ensuring elections that are held are free and fair. It is pointless to have an election on a particular date if it is not free and fair.
Since 1991, Ethiopia has had elections for the purpose of having elections but none of them were free and fair. For the TPLF elections were nothing more than ritualistic practices and not a process by which the people elected their leaders freely and fairly. Indeed, for the TPLF elections were political theater staged for the benefit of donors and loaners as I argued in my 2009 commentary. Before an election, the TPLF created a fanfare, snagged millions of dollars in aid to conduct the elections and on election day declared total victory. I called elections under the TPLF regime “elektions”, that is fake elections.
In 2011, Seeye Abraha, one of the founders of the TPLF wrote, “The most incredible fact about the May 2010 Ethiopian election is not that the ruling Ethiopian People Revolutionary Party (EPRDF) won; that was foreordained.”
A foreordained election is not much of an election. It is political drama.
In a country where there are over 80 political parties, in 2010, the TPLF regime claimed to have won 99.6 percent of the seats in parliament in 2010.
In 2015, the TPLF claimed it had won 100 percent.
Neither the 2010 nor 2015 elections could be called free and fair by any reasonable standard but they were held on the constitutionally prescribed date.
An election that is not free and fair is no election at all. It is a travesty of election, a monumental disregard of the democratic right to self-government.
Whether or not the August 2020 election should be postponed should pivot on a single question: Given the COVID-19 crisis, is it possible to have a free and fair election in August 2020?
For me, elections under the Ethiopian Constitution is not about having a mechanical process of selecting candidates on a prescribed date. met is about ONE and only ONE thing: Having a free and fair election!
While ignorant demagogues and political junkies bandy the phrase “free and fair election” like expletives, it is rooted in universally accepted principles and practices.
The Inter-Parliamentary Union which represents 179 parliaments, including Ethiopia’s, has published standards for free and fair election which include establishment of 1) procedures and criteria for voter registration, initiation or facilitation of national programs of civic education on election procedures and issues; 2) neutral, impartial mechanism for the management of elections; recruitment and training of election officials and operatives; 3) procedures to ensure the integrity of the ballot and institution of measures to prevent voting fraud, establishment of mechanisms to ensure the integrity of the vote counting process, 4) mechanisms to ensure freedom of movement, assembly, association and expression for all contenders, particularly in the context of political rallies and meetings and creating conditions that will ensure parties and candidates are free to communicate their views to the electorate and 5) updating of electoral rolls and balloting procedures, and monitoring of performance under election Code of Conduct, among others.
The African Union Declaration on the Principles Governing Democratic Elections in Africa sets similar standards for free and fair election. Under Section III are listed numerous factors that must exist to ensure a free and fair election including: compilation of voters’ registers, establishment of national electoral bodies staffed by qualified personnel, set up of safeguards ensuring freedom of movement, assembly, association, expression, and campaigning, promote civic and voters’ education on the democratic principles and values in close cooperation with the civil society groups, implementation of measures to prevent the perpetration of fraud, rigging or any other illegal practices throughout the whole electoral process, ensure the availability of adequate logistics and resources for carrying out democratic elections and provision of adequate security to all parties participating in elections as well as accrediting national and/other observers/monitors.
These internationally recognized conditions for a free and fair election simply cannot be met today or in August 2020 as unequivocally stated by the head of the National Election Commission because of the COVID-19 crisis.
What constitutional options are available to ensure that a free and fair election is held?
Since the reason precluding a free and fair election in August 2020 is COVID-19 and since COVID-19 is constitutionally recognized as creating a state of emergency in Proclamation 3/2020, it follows that an already recognized emergency under Article 93 is a constitutionally sufficient condition to postpone the election by a declaration of a state of emergency.
The constitutional framework for Proclamation 3/2020 include Article 77(10) (“The Council of Ministers has the power to declare a state of emergency; in doing so, it shall, within the time limit prescribed by the Constitution, submit the proclamation declaring a state of emergency for approval by the House of Peoples’ Representatives.”) and Article 93 which provides:
- (a) The Council of Ministers of the Federal Government shall have the power to decree a state of emergency… [in the event of] … an epidemic….
- (a) If declared when the House of Peoples’ Representatives is in session, the decree shall be submitted to the House within forty-eight hours of its declaration… [and when not in session it] shall be submitted to it within fifteen days of its adoption.
- A state of emergency decreed by the Council of Ministers, if approved by the House of Peoples’ Representatives, can remain in effect up to six months [and extended]… by a two-thirds majority vote…every four months successively
- (a) When a state of emergency is declared, the Council of Ministers shall… have all necessary power to protect the country’s peace and sovereignty, and to maintain public security, law and order.
(b) The Council of Ministers shall have the power to suspend such political and democratic rights contained in this Constitution to the extent necessary to avert the conditions that required the declaration of a state of emergency.
(c) In the exercise of its emergency powers the Council of Ministers cannot, however, suspend or limit the rights provided for in Articles 1, 18, 25. and subArticles 1 and 2 of Article 39 of this Constitution.
The House of Peoples’ Representatives, while declaring a state of emergency, shall simultaneously establish a State of Emergency Inquiry Board, comprising of seven persons to be chosen and assigned by the House from among its members and from legal experts [with the duty of]…mak[ing] public within one month the names of all individuals arrested on account of the state of emergency together with the reasons for their arrest… [ensure] no measure taken during the state of emergency is inhumane… [and] (c) To recommend to the Prime Minister or to the Council of Ministers corrective measures if it finds any case of inhumane treatment.
The Council of Ministers of the Federal Government has the plenary constitutional power to declare a state of emergency, in much the same way as it did in Proclamation 3/2020 and postpone the election for the constitutionally mandated period of six months.
A Proclamation to postpone the August 2020 election should be crafted in the same way as Proclamation 3/2020.
Alternative II: Constitutional basis for postponement of the August 2020 election under Article 60: Dissolution of Parliament
The Prime Minister has plenary powers to dissolve parliament before the expiry of its term. The Prime Minister is required to consult and obtain the consent of Parliament but ultimately the power to dissolve parliament is delegated to the office of the prime minister. The post-dissolution government will serve as a “caretaker” government.
Article 60 (1) provides, “With the consent of the House, the Prime Minister may cause the dissolution of the House before the expiry of its term in order to hold new elections.”
Article 60 (3) provides, “If the House is dissolved pursuant to sub-Article 1 or 2 of this Article, new elections shall be held within six months of its dissolution.”
Article 60 (5) provides, “Following the dissolution of the House, the previous governing party or coalition of parties shall continue as a caretaker government. Beyond conducting the day to day affairs of government and organizing new elections, it may not enact new proclamations, regulations or decrees, nor may it repeal or amend any existing law.”
Dissolution of parliament is not a viable alternative. Indeed, it is recipe for anarchy and chaos. The post-dissolution government is mandated to play the role of “care taker” which means it is limited in its scope of action. The Prime Minster and the Council of Ministers will be limited to “essential business”. They cannot undertake any new policy initiatives. They cannot make new appointments. They cannot enter into international agreements.
Could any reasonable person seriously consider a “care taker government” when Ethiopia is facing an existential threat unprecedented in living memory?
Could any reasonable person seriously consider a “care taker government” when hundreds of thousands, and possible more, Ethiopians are facing a death sentence at the hands of COVID-19?
Could any reasonable person seriously consider a “care taker government” when Ethiopia is in the grips of COVID-19, Egypt is saber-rattling and beating the drums of war against Ethiopia if Ethiopia should begin to fill the Grand Renaissance Dam in July 2020?
Could any reasonable person seriously consider a “care taker government” when there are those proclaiming to hold their own elections in violation of Article 104 of the Constitution and de facto create their own state?
Could any reasonable person seriously consider a “care taker government” when the world’s leading economists are predicting COVID-19 will exact “a heavy toll on the economy”?
Could any reasonable person seriously consider a “care taker government” when so-called leaders are stoking the flames of ethnic and religious division so that they can grab power?
Could any reasonable person seriously consider a “care taker government” when Ethiopia is rising as a model of democracy, rule of law and human rights in Africa and the rest of the world?
Could any reasonable person seriously consider a “care taker government” when Ethiopia needs hundreds of millions of dollars in loans and aid to fight COVID-19 but will not have a government capable of concluding international agreements. The IMF gave Ethiopia over USD 400 million because it was impressed by the approach and commitment of the government of PM Abiy Ahmed in the COVID-19 crisis. The IMF Managing Director Kristalina Georgieva tweeted, “I commend the swift and decisive response by @AbiyAhmedAli and #Ethiopia to mitigate the impact of #COVID19.”
PM Abiy will not be able to deal with the IMF, the Wold Bank or any other government or agency if he is the head of a caretaker government!
For lack of a more appropriate phrase fit for polite company to describe my reactions to a dissolved parliament followed by a caretaker government, I will simply say, Bah! Humbug!
Alternative III: Constitutional basis for postponement of the August 2020 election under Article 104 – Amending the Constitution
Article 104 provides for a constitutional amendment: “Any proposal for constitutional amendment, if supported by a two-thirds majority vote in the House of Peoples’ Representatives, or by a two-thirds majority vote in the House of the Federation or when one-third of the State Councils of the member States of the Federation, by a majority vote in each Council have supported it, shall be submitted for discussion and decision to the general public and to those whom the amendment of the Constitution concerns.”
According to one legal commentator, the Ethiopian Constitution has been “amended twice in the past twenty years.” Article 98 was “amended so as to change the spirit of concurrent power of taxation into revenue sharing.” Article 103(5) was amended “to extend the period for conducting national population census to more than 10 years.” This commentator cites authority for the proposition that the “Ethiopian Constitution is silent on defining the bodies having the power to initiate constitutional amendments.” The commentator argues “the constitutional framers [] wished to give the [amendment] power to the House of Peoples’ Representatives, House of Federation and State Councils.” The commentator “conclude[s] in Ethiopia, the HPR, the HoF and State Councils have the power to initiate constitutional amendments” and presentation of the final “‘submi[ssion] [of the amendment] to the general public for discussion and decision”. It “is not clear whether it denotes referendum or not.”
The principle of Ockham’s razon should apply here. There is no need to seek out complex and convoluted solutions when direct and constitutionally sound solutions are available. If indeed a referendum is required for ratification of a constitutional amendment under Article 104 in which a direct and universal vote is required, one might as well have the August 2020 election in the middle of the COVID-19 crisis. If the August 2020 election could not be held because of COVID-19, by the same token no referendum on a constitutional amendment could also held.
La línea de fondo
The choice is simple. Saving Ethiopian lives against having an election on a particular date and risk untold numbers of deaths. Elections make sense when people are alive. Those who try to make political hay out of the postponement of the August election have no regard for the lives of the people they claim to protect and represent. They are only interested in grabbing power at all costs. They will continue to run around threatening violence if the election is postponed and claim there will be no legitimate government after September 2020. But they will find out that when push comes to shove, the velvet gloves will be taken off. They may see this as their last opportunity to sneak themselves into power. They will fail in their evil plans because the people of Ethiopia will reject them totally.
Regardless, The alpha and omega constitutional question in the current debate over postponing the August 2019 elections is whether it is possible given the COVID-19 crisis it is possible to hold a free and fair election, not the mechanical process of electing candidates to office. If an election could be held on the scheduled date but it cannot be free and fair, it will amount to nothing more than an exercise in futility and a gross abuse of the people’s right to democratic self-rule.
To be continued…
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Relevant Constitutional Provisions:
Article 38 (1) (c): “Every Ethiopian national has the right to vote and to be elected at periodic elections to any office at any level of government; elections shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”
Article 38 (3): “Elections to positions of responsibility within any of the organizations referred to under sub-Article 2 of this Article shall be conducted in a free and democratic manner.”
Article 5: “The Federal government has the power to declare and to lift national state of emergency and states of emergencies limited to certain parts of the country.”
Article 54 (1): “Article Members of the House of Peoples’ Representatives shall be elected by the People for a term of five years on the basis of universal suffrage and by direct, free and fair elections held by secret ballot.”
55 (8): “The House of Peoples’ Representatives in conformity with Article 93 of the Constitution it shall declare a state of emergency; it shall consider and resolve on a decree of a state of emergency declared by the executive.”
Article 58 (3): “The House of Peoples’ Representatives shall be elected for a term of five years. Elections for a new House shall be concluded one month prior to the expiry of the House’s term.”
Article 60 (1) provides, “With the consent of the House, the Prime Minister may cause the dissolution of the House before the expiry of its term in order to hold new elections.”
Article 60 (3): “If the House is dissolved pursuant to sub-Article 1 or 2 of this Article, new elections shall be held within six months of its dissolution.”
Article 60 (5): “Following the dissolution of the House, the previous governing party or coalition of parties shall continue as a caretaker government. Beyond conducting the day to day affairs of government and organizing new elections, it may not enact new proclamations, regulations or decrees, nor may it repeal or amend any existing law.”
Article 62 (1): “1. The House has the power to interpret the Constitution.”
Article 77 (10): “The Council of Ministers has the power to declare a state of emergency; in doing so, it shall, within the time limit prescribed by the Constitution, submit the proclamation declaring a state of emergency for approval’ by the House of Peoples’ Representatives.”
Article 83 (1): “All constitutional disputes shall be decided by the House of the Federation. 2. The House of the Federation shall, within thirty days of receipt, decide a constitutional dispute submitted to it by the Council of Constitutional Inquiry.”
Article 84 (1): “The Council of Constitutional Inquiry shall have powers to investigate constitutional disputes. Should the Council, upon consideration of the matter, find it necessary to interpret the Constitution, it shall submit its recommendations thereon to the House of the Federation. (2) 2. Where any Federal or State law is contested as being unconstitutional and such a dispute is submitted to it by any court or interested party, the Council shall consider the matter…
Article 87: “The armed forces shall protect the sovereignty of the country and carry out any responsibilities as may be assigned to them under any state of emergency declared in accordance with the Constitution.”
Article 93: 1. (a) The Council of Ministers of the Federal Government shall have the power to decree a state of emergency should an external invasion, a breakdown of law and order which endangers the constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel, a natural disaster, or an epidemic occur.
- (a) If declared when the House of Peoples’ Representatives is in session, the decree shall be submitted to the House within forty-eight hours of its declaration. (b) Subject to the required vote of approval set out in (a) of this sub-Article, the decree declaring a state of emergency when the House of peoples’ Representatives is not in session shall be submitted to it within fifteen days of its adoption.
- A state of emergency decreed by the Council of Ministers, if approved by the House of Peoples’ Representatives, can remain in effect up to six months. The House of Peoples’ Representatives may, by a two-thirds majority vote, allow the state of emergency proclamation to be renewed every four months successively
- (a) When a state of emergency is declared, the Council of Ministers shall, in accordance with regulations it issues, have all necessary power to protect the country’s peace and sovereignty, and to maintain public security, law and order.
(b) The Council of Ministers shall have the power to suspend such political and democratic rights contained in this Constitution to the extent necessary to avert the conditions that required the declaration of a state of emergency.
(c) In the exercise of its emergency powers the Council of Ministers cannot, however, suspend or limit the rights provided for in Articles 1, 18, 25. and sub Articles 1 and 2 of Article 39 of this Constitution.
The House of Peoples’ Representatives, while declaring a state of emergency, shall simultaneously establish a State of Emergency Inquiry Board, comprising of seven persons to be chosen and assigned by the House from among its members and from legal experts.
- The State of Emergency Inquiry Board shall have the following powers and responsibilities:
(a) To make public within one month the names of all individuals arrested on account of the state of emergency together with the reasons for their arrest.
(b) To inspect and follow up that no measure taken during the state of emergency is inhumane.
(c) To recommend to the Prime Minister or to the Council of Ministers corrective measures if it finds any case of inhumane treatment.
(d) To ensure the prosecution of perpetrators of inhumane acts.
(e) To submit its views to the House of Peoples’ Representatives on a request to extend the duration of the state of emergency.
Article 102 (1) (2): “1. There shall be established a National Election Board independent of any influence, to conduct in an impartial manner free and fair election in Federal and State constituencies. 2. Members of the Board shall be appointed by the House of Peoples’ Representatives upon recommendation of the Prime Minister.”
Article 104: “Any proposal for constitutional amendment, if supported by a two-thirds majority vote in the House of Peoples’ Representatives, or by a two-thirds majority vote in the House of the Federation or when one-third of the State Councils of the member States of the Federation, by a majority vote in each Council have supported it, shall be submitted for discussion and decision to the general public and to those whom the amendment of the Constitution concerns.”
