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Tigray’s ruling party’s plan to proceed with the polls before the rest of the country can face legal obstacles
OROn March 31, the electoral board announced that it would not be able to meet the August 2020 electoral calendar. On May 4, the ruling party’s politburo Tigray said it would hold polls independently.
The Tigray People’s Liberation Front (TPLF), which presents itself as the true guardian of the constitution, appears to want to show that the Prosperity Party (PP) is violating the constitution to stay in power using the global pandemic as a pretext. For example, Fortune TPLF MP Adhana Haile said the delay was premature because the virus had not taken hold of Ethiopia.
These events occurred after April 29, when the government had a discussion with rival political parties under the theme “COVID-19, postponing elections and legal solutions” and proposed four solutions. On April 30, following the recommendation of the electoral board, the parliament addressed the agenda to the Standing Committee on Legal, Justice and Administrative Affairs for further scrutiny.
Not all parties have welcomed the postponement. Some agreed that it was necessary, but others also accused the government of using the pandemic as a pretext to remain in power. Above all, the incident axiomatically exhibited friction between the PP and some opposition parties, mainly TPLF.
The electoral board announcement on March 31 raised constitutional questions, as articles 54 (1) and 58 (3) of the constitution limit the term of the members of the House of Representatives to five years; and they also require ‘‘ elections for a new Chamber [to] conclude one month before the expiration of the term “of the Chamber”. Therefore, since the House agreed to postpone the elections, there appears to be a question of legitimacy over all governments and officials in the country.
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Now is the time for democratic institutions to play their part in the transition, writes Mamo Mihretu, Prime Policy Adviser to the Prime Minister.
So could one of the federal units hold a legitimate general election at the regional level without the consent of the electoral board?
Article 51 (15) and (55) (2) (d) of the federal constitution specifies that parliament “is empowered to enact laws (that) give practical effect to the political rights provided for in this constitution, all necessary laws governing political parties and electoral laws and procedures. ” The constitution, under Article 52 (1), also grants all authority to states that is not expressly granted only to the center, or at the same time to the center and the regions.
Because the constitution gives the federal government the power to make laws governing political parties and electoral laws, as well as procedures, it follows logically that regional states would have to defer to the federal government in this domain. Agree with this, Articles 4 (2) and 8 (4) of Proclamation No. 1162/2019 stipulates that if regional electoral laws contradict the federal law on elections, they would have no legal effect.
On the other hand, Article 102 (1) of the constitution provides ‘‘[t]here a National Board of Elections independent of any influence will be established to impartially carry out free and fair elections in the federal and state constituencies. “In conjunction with this constitutional provision, Proclamation No. 1133/2019 established a national board ‘‘ which has its own legal personality as an autonomous body independent of any influence. ’’
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Both the constitutional provision and the proclamation of the establishment make clear that the mandate of the junta to hold elections applies to both federal and state constituencies. In fact, the establishment’s proclamation explicitly empowers the board to ‘‘ execute impartially none election and referendum carried out in accordance with the Constitution and with the electoral law “”. This may be the reason why none of the regional constitutions have provisions to establish state electoral boards.
Therefore, it seems clear that its authors agreed to have a single national electoral board to organize federal and regional elections; and empower the federal government to enact laws governing political parties and electoral laws and procedures.
Given this guide to the constitution and electoral law, the question of whether regions can hold legitimate general elections, and the legitimacy of incumbent governments after the expiration of the mandate, depends on the reason behind the decisions of the electoral board. and the lower house of parliament to defer elections.
Normally, there are two possible reasons for not holding elections within the period scheduled by the constitution: first, if the country is in an extraordinary situation, such as the current health emergency; the second would be if the government was unwilling to hold the elections, possibly due to political motivations.
When the latter, the lack of will, is the case, the incumbent government would automatically be illegitimate and the states, at least in theory, could do as they see fit. There is no reason why a region cannot hold elections in accordance with all constitutional provisions and other laws governing political parties and electoral procedures.
The problem is different when a de jure The state of emergency is declared complying with all legal requirements, the first scenario. In such a case, it would be absurd to argue that the government is illegitimate. The existential threat to the state must be taken as a legitimate reason to postpone the election, assuming that the suspension is necessary to combat the danger. In a case like the coronavirus, the incumbent government could justifiably remain in power until the danger has passed.
Consequently, in this scenario, regions cannot hold a legitimate general election without the approval of the electoral board and the chamber. If any of the regional states wants to hold a regional general election, the possible approach could be Article 7 (2) of Proclamation No. 1162/2019. This provision gives the electoral board some flexibility, so that if the board deemed it necessary, and if parliament approved, surveys could be conducted.
The next question is, how long could an interim government maintain its legitimacy? Obviously, it should be until the danger is over, and one of the most difficult political questions will be how to decide when the virus is played long enough to make it safe to hold elections and return to normal. But regarding the specific period in which a vote must be held once the emergency is over, the constitution is ambivalent.
However, it may be possible to use Article 60 (3) of the constitution as a guide, which sets a time limit in case of dissolution of the lower house. This article requires a new election within six months of dissolution. So it appears that the drafters of the constitution thought that six months would be enough to prepare and hold elections. Therefore, it appears to have been his intention that elections be held within six months of containing the danger.
Meanwhile, all concerned institutions must work shoulder to shoulder to preserve the state instead of making short-term political gains. Everyone, including the junta, must buckle up to correct past mistakes and weaknesses, to ensure that the elections, when they finally arrive, are a fair expression of the will of the people.
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This is the author’s point of view. However, Ethiopia Insight will correct clear factual errors.
Editors: Peter Heinlein, William Davison
Main photo: Prime Minister Abiy Ahmed with Tigray leader Debretsion Gebremichael; June 11, 2019; Aksum, Tigray; PMO
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Published under Creative Commons Attribution-NonCommercial 4.0 International License. Cite Ethiopia Insight and link to this page if republished.
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