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Now is the time for Ethiopia’s democratic institutions to step forward and play their role in the transition, writes Mamo Mihretu, Prime Policy Adviser to Prime Minister Abiy Ahmed, exclusively for Ethiopia Insight.
TThe COVID-19 pandemic has presented the world with its greatest test in living memory. To control both the disease and its socio-economic impact, it has become necessary for most countries to implement some version of a blockade to reinforce social distancing.
Some lessons are already evident: first, combating the pandemic is not a matter for public health institutions alone; it needs the active participation of the economic and security sectors; and second, the impact will be exponentially greater in developing countries like Ethiopia.
As a result, the federal government has declared a state of emergency that has established social distancing requirements and has enhanced the powers of its police authorities to ensure that the public observes these measures. It is encouraging to note that private and civic organizations have responded to the call with a sense of duty and responsibility. However, the task before us is immense and requires coordination at the local, national, regional and global levels.
The government’s record so far in fighting the pandemic is very encouraging, but until all cases have been detected and isolated, the risk of the disease spiraling out of control will never be present. An indicator that may indicate that we are close to the finish line is the question of whether all cases have been successfully tracked, be it for travel history or the country’s first infection. As we continue to quarantine, test and trace, it is crucial that the cases we have missed do not lead to community transmission.
What does this all mean?
It means that until these criteria are met, the goal of containing the disease must replace all other priorities; all other agenda items that compete with this priority must be postponed. In the face of death, we are all one. We are much stronger when we focus on this unique agenda and fight together.
One consequence of this pandemic-focused approach and the need to impose mandatory social distancing has been the postponement of general elections beyond the time frame required by the constitution.
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The Ethiopian National Electoral Board (NEBE) planned milestones that are prerequisites for the election, such as voter registration and education; production, acquisition and distribution of electoral materials / equipment; recruitment and training of electoral support personnel; etc. – have been lost or delayed. With the uncertainty created by the pandemic in mind, NEBE has concluded that it will not be able to hold the elections on August 29 as scheduled.
It is hardly necessary to explain that this pandemic and its profound health and socioeconomic consequences were unforeseen by the government, in fact, by any government. It is public knowledge that the ruling party had been preparing for the elections on the assumption that they would take place as scheduled.
Events like COVID-19 have been labeled “black swans”; they are highly improbable, have substantial effects that threaten to change the course of history, and are only rationalized in retrospect. While many public health experts and public figures have warned us of the possibility of a pandemic flu, the novelty of the virus and its modes of transmission meant that no nation was prepared to handle it. In fact, COVID-19 has questioned traditional disaster preparedness models, since their preparation would require vast resources with a substantial cost burden to maintain the necessary excess capacity in sanitary and industrial systems. For example, manufacturing companies could not move to the production of masks and medical equipment without significant redesign and investment. This is all to say that almost everyone was caught without preparation. It is precisely this novelty that has led to a Deadpoint That requires a creative constitutional solution when it comes to the upcoming elections in Ethiopia.
Despite the requirements on periodic elections and the mandate of parliament, the constitution does not have explicit provisions that address situations where it might be impossible to hold elections before the expiration of parliament’s mandate due to a Force Majeure event like COVID-19. In the absence of a general election in early September 2020 or a constitutional solution, we will face one of two possible outcomes: First, if the current administration remains in office, it will stay longer than its term and risk being illegitimate. , legally and in the eyes. From the public In the alternative outcome, if the administration resigns, the Ethiopian state would be without a government.
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As we search for the correct constitutional solution, we must ensure that it meets various imperatives in our battle against the pandemic, as well as our long-term ambition to consolidate democratic governance. Any proposed solution should allow us to manage the pandemic with all state resources. At the same time, any path to follow must adhere to the spirit and letter of the constitution; guarantee an election that is inclusive, free and fair; and be seen as credible, legitimate and beyond reproach in the eyes of the public and the international community.
Finally, the solution we propose must be expedited, taking into account the limitations of time and resources, and enjoy the greatest possible degree of acceptance by the public to guarantee an orderly transfer of power to the party or parties that win the elections.
With these criteria in mind, we can consider at least four constitutional options (although with their own limitations) that will lead us to a new normality, both in terms of public health and political leadership:
- The current government is left with a limited mandate as “caretaker” after the dissolution of parliament;
- The current government extends the term through a state of emergency and enjoys a full regular mandate;
- Constitutional amendment; and
- The situation was referred to the Constitutional Research Council of the Federation Chamber, so that it can provide a constitutional interpretation and pass a binding resolution.
Under option one, having dissolved the Representatives of the House of Peoples (HoPR) using Article 60 of the constitution, the current administration can continue with a limited mandate that prevents the issuance of new legislation and the modification of existing laws. On the plus side, this buys an additional six months to hold elections and only requires a simple majority vote in the HoPR to activate. On the downside, it could be said that its application does not extend to the regions, which would mean that it would only provide a federal solution. The limited mandate of the provisional government would force the administration’s hands to take political measures to deal with the pandemic and its secondary impacts. Furthermore, a government with a limited mandate can indicate weakness and encourage disorder.
Under option two, the current administration can extend its regular mandate through a state of emergency (SOE). While this has the benefit of allowing the government to deal with the pandemic with a comprehensive set of legal and administrative instruments, it has several weaknesses. Extending your own term means that the government will likely suffer from little legitimacy in the eyes of the public and would undermine the spirit of our constitutional order. If elections are held during an SOE, your credibility would be at risk. This option would also be perceived as self-sufficient, as parliament is extending its own mandate by renewing the state of emergency. Furthermore, if the COVID-19 problem is resolved, there will be no substantive reason to extend the SOE, and this would lead to a further constitutional crisis as the term of parliament expires along with the emergency. In this sense, it solves short-term challenges, but without paving the way for a long-term solution.
Ethiopia Insight – Ethiopia’s COVID-19 Dilemma
By Ethiopia Insight
Amending the constitution under option three, while it may provide continuity of government through the pandemic and help ensure a free and fair election, has the weakness of requiring cumbersome public participation and a two-thirds majority vote in a joint session of the House of Representatives and the House of Representatives. of the Federation, as well as the majority support in two thirds of the regional state councils. The main challenge here is the requirement in Article 104 of the constitution that a proposal for a constitutional amendment be submitted for public discussion.
If the COVID-19 situation continues until at least September 2020, it would not be possible to hold public meetings and hold extensive discussions on proposed amendments. There are also likely to be more delays as a broader set of more complicated issues in the constitution could well open up for debate. As a result, it may require a time frame well beyond the August 2020 deadline, and therefore distract the government and the public from the most urgent task of protecting public health and fighting a potential economic crisis.
The fourth and, in general, the most optimal option is to refer the matter to the Federation Chamber for an authorized interpretation of the constitution. The upper house of parliament has the sole mandate to do this and is therefore the legitimate body to carry out this task. The drafters of the constitution considered the document to be a “political contract” of the nations, nationalities and peoples of Ethiopia, and it grants the maximum power to interpret it to the Federation Chamber on the understanding that it is composed of representatives of the various communities, delegated by regional state councils.
Although the Federation Chamber has the last word, the Constitutional Research Council (ICC) is the “quasi-constitutional court” that deals first with the issue. Article 3 (c) of Proclamation No. 798/2013 establishes that constitutional disputes on non-justiciable matters may be submitted to the ICC by a third of the members of the federal parliament or a regional council, or by executive bodies at any level. . The fact that the ICC is chaired by the Chief Justice and his deputy and several independent lawyers will add to its legitimacy. Compared to the other options, the participation of the judiciary would improve political legitimacy.
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The case in question requires a binding constitutional interpretation since the constitution does not explicitly address what will happen when an unforeseen event prevents the holding of periodic elections as stipulated by the constitution.
This option has several advantages: convenience, applicability at the national level, which allows the continuity of the government through the COVID-19 crisis, and will pave the way for credible elections. The final decision of the ICC and the Federation Chamber after due deliberation will be an authorized resolution of the case.
To summarize: the constitution offers several options that ensure the continuity of a legitimate government beyond its mandate on a temporary and exceptional basis. There would have been a crisis if the constitution had not provided for such safety valves; but it has. Instead, what we have is an unprecedented challenge to understand, interpret, and apply the constitution in the way that best meets its most fundamental purpose: the continuity of the Ethiopian state.
Institutions are intended to provide continuity and objectivity. With all the risks involved, now is a mature opportunity, an opportune moment, to test the maturity of our institutions, to enable them to exercise their Reason to be and strengthen constitutionalism. The Constitutional Research Council would have a historic opportunity to interpret the constitution in a way that reflects its text, spirit, and history, but without looking at it as a document frozen in time. If it succeeds in this task, history will see the decision as a decisive moment that not only shapes the course and character of Ethiopian politics, but also a great day that heralds the consolidation of our democracy and the durability of our institutions.
