The Ethiopian General Election, Constitutional Crisis and Legitimacy
By Makonnen Tesfaye
Tigrai Online May 3, 2020
1. Background and Context
1.1 The writing was on the wall for some time now. The Covid-19 card is the joker in the pack. The illegitimate Government of Colonel Abiy Ahmed decision to extend the usurpation of state power by unconstitutional means is the culmination of the many and repeated violations of the Democratic Federal Constitution of the Country. The last and ultimate excuse of the Corona Virus Pandemic for not holding the scheduled General Election and the fabrication of a “constitutional crisis” must register as a first in modern political history of many countries. The intention and plan has always been very apparent with or without the Covid-19 excuse. Many countries, such as the US with over 1 million Corona Virus cases and over 65,000 Corona-related deaths (at the time of writing), have not countenanced the postponement of their general elections. Similarly, the Republic of Korea recently held a General Election with an unusually high voter turnout. The UK held its General Election in December when the prospect of the Corona Virus was on the horizon. Germany is going ahead with its regional elections this year. Poland and New Zealand plan to hold their general elections in 2020. Even in Africa, where there is a deficit of democracy, Ghana, Ivory Coast, Tanzania, Malawi, Guinea, Burundi, Togo, Seychelles, Niger, Central African Republic and Somalia have scheduled to hold their presidential and legislature elections between May and December of 2020. It is also true that inconsequential (i.e. elections that are not presidential or Legislature elections) local elections, primaries and referenda have been postponed in a number of countries due to the Covid-19 Pandemic. All these demonstrate the commitment and the need to adhere to the constitutional rule, where general elections are the highest form of democratic expression. As enshrined in the Article 21(3) of the Universal Declaration of Human Rights, the principal defining attribute of a democracy is the imperative to hold regular and periodic elections. By doing so citizens are empowered to renew the mandate or remove their leaders by casting their votes at regular intervals. Similarly, the EFDR Constitution stipulates that:
“All sovereignty power resides in the Nations, Nationalities and Peoples of Ethiopia”; “the Constitution is an expression of their sovereignty”; and that “their sovereignty shall be expressed through their representatives elected in accordance with the Constitution and through their direct democratic participation”.
(Article 8, on the Sovereignty of the People, the Constitution of the EFDR)
“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 by secret ballot, guaranteeing the free expression of the will of the electorates”
(Article 38, Sub-article 1(c), the Constitution of the EFDR)
1.2 Notwithstanding the very low number of Covid-19 cases in Ethiopia (140 cases and 3 deaths to date and undoubtly is expected to grow to much higher numbers), the danger and risk is very real and will complicate the circumstances under which a General Election can be held. This is because of the need to maintain social distancing and avoiding mass gathering. Furthermore, holding a general election with the backdrop of the danger of the Pandemic has other potential adverse implications, including lower voter turnout, opportunity for the government to rig elections even more under the pretexts of emergency rules; challenges for electoral boards to administer and monitor the electoral processes and logistics. Similarly, opposition parties (unlike the party that holds power) are very likely to face challenges of recruiting and deploying election agents under a condition of Covid-19 Pandemic. Yet, with democratic commitment and planning the challenges are not insurmountable as evidenced by countries that have or planned to conduct elections under the Pandemic.
1.3 Furthermore, judging by the parameters of the Government’ own guideline governing existing social and economic activities and interactions currently prevailing in the country (people are allowed to work, travel, go to markets and attend churches and mosques etc.), it is not the case that a couple of months of regulated and negotiated campaigning (with emphasis on televised debates) and voting spread over a number of days would create such an unacceptable public health risks that are above and over of existing risks. The extra public health risks need to be compared with the adverse political, security, social and economic consequences of the failure to hold the election.
1.4 Many countries that are committed to democratic rule have laid down plans and regulations to conduct their general elections under the conditions of the prevalence of Covid-19 Pandemic. Similarly, many agencies (e.g. IDEA - a public policy institution) have developed credible guidelines on how to conduct elections with relative safety under varying prevalence of the Pandemic. The upshot is that if there is a will there is a way. Indeed this is an area that requires careful evaluation of the facts on the ground and negotiations amongst affected parties in order to determine how safely to conduct the election under the prevailing conditions.
2. The Deliberate Fabrication of a “Constitutional Crisis” to Mask the Usurpation and Consolidation of State Power.
2.1 It is ironic that the Abiy Government which has been ordained and presented as a “reformist and democratic” government by its external neoliberal backers as well as by a minority of Ancient Regime supporters has miserably failed even to prepare and conduct a general election during a period of two and half years of its existence. With all its democratic deficits the now doomed EPRDF held regularly 5 general elections (with varying degree of freedom, fairness and credibility) in Ethiopia under conditions of war, “No-War, No-Peace”, potential famine and droughts and natural disasters over 28 years. Yet, the present dependent and comprador government (lacking social base and electoral constituencies in the nations, nationalities and peoples of Ethiopia) has no commitment or desire to hold a free, fair and credible election with or without the excuse of the Corona Virus Pandemic.
2.2 It is now the case that the scheduled General Election in Ethiopia is not taking place as far as the illegal Government is concerned. As a result the illegal EPP has proposed 4 directions to address the failure to hold the General Election. The options and their constitutionality and legal viability are briefly discussed.
(i) To dissolve Parliament (both the House of Representatives and the House of Federation) with a view to postponing the election for six months or to unspecified future date.
The constitutional provision for the dissolution of Parliament (generally upon a failure to win a vote of confidence in Parliament and when the incumbent is unable to legislate or govern) as stipulated in Article 60 is in order to hold a new early election not for the purpose of extending the term of an existing Parliament (Article 60(1)); and requires holding an election within six months of the remaining life of the sitting Parliament, which would contradict the aim of postponing the election in the first place. The reason is why dissolve and hold an election when your intention in the first place is to postpone the election. This constitutional avenue cannot be used to extend the term of a sitting Parliament. Moreover, it would be a travesty of the Constitution for the Government to lose a vote of confidence when it has a captive and overwhelming majority in Parliament!
(ii) To use “a state of emergency” to postpone the election.
Article 93 of the Constitution cannot be used to extend the term of a sitting Parliament. This is for the obvious reason of not creating a legal condition or precedent for an elected Government becoming a dictatorship by declaring a state of emergency that is successively and indefinitely renewed. Moreover, the fundamental right and freedom to vote and to be elected stipulated under Article 38, Sub-article (1c); and more importantly the right of self-determination (which includes self-governance through democratic elections) stated under Article 39 cannot be suppressed or limited under any condition including a state of emergency. Indeed, rule by state of emergency is the whole mark of a dictatorship and is completely unacceptable for the many nations, nationalities and peoples. It would be back to square one, inviting Mark II of national liberation movements.
(iii) A constitutional amendment to extend the term of the sitting Parliament for the purpose of postponing an election.
The EFDR Constitution can be amended according to the articles stipulated in Articles 104 and 105. For example, the term of Parliament (Houses of Representatives and House of Federation) are stipulated in Articles 54, 58 and 67. The terms of both Houses are limited to 5 years. The question is whether an existing and sitting Parliament can extend its terms by amending those Articles. The layman understanding and the overwhelming legal opinion is that the amended Articles become operative only after and when a new Parliament is elected and a new Government is put in place. Otherwise, for an existing Parliament to extend its terms would create a legal condition or loophole for perpetual sitting of an existing parliament that has a large majority and the perpetual rule of the Government its supports without the need to renew its mandate at regularly and periodically held elections. This is a recipe for “elected dictatorship”. This option for extending the term of the existing Parliament will be a total and complete travesty of representative democracy and a sure way of establishing a dictatorship in the Country. For this reason in almost all democracies this constitutional loophole for perpetual rule of a majoritarian party is not available. For example, the Scottish Parliament elected in 2010 amended the term of the Scottish Parliament to last five years from 4-year term but become operational in the next Parliament that was elected in 2015. Similarly, the British Parliament elected in 2010 amended the term of the British Parliament in 2011 (The Fixed-Term Parliament Act 2011) but became operational after a new Parliament was elected in 2015. New Zealand and Australia also amended the terms of their legislatures but only became binding for the successive and newly elected parliaments not during the term of parliament that amended the law. Legislating to extend term for the vested interest of existing legislators is profoundly corrupt, undemocratic and legally dubious according to universally held constitutional and legal principles and opinions.
Yet many African leaders have used constitutional amendments to become dictators. However, even by developing countries and African standards, sitting parliaments' attempts to prolong their terms have been successfully and legally challenged in many instances. For example, in Iraq that has a federal constitution, its Parliament’s attempt to extend its terms in 2018 was successfully blocked as unconstitutional by the ruling of its Federal Supreme Court. Interestingly, the reasons provided for seeking the postponement of the Iraqi election was based on the argument of the prevalence of social dislocation and insecurity following the war against ISIS. This sound familiar since before the advent of Covid-19 the argument for seeking to postpone the Ethiopian General Election was based on the prevailing insecurity and social dislocation in the country. Closer to home, Uganda’s MPs elected in 2016 under 5-year term attempts to extend their terms to 7-years by a “constitutional amendment” was found unconstitutional by the unanimous judgments of 5 judges of the Uganda’s Court of Appeal. Some of the rulings expressed by the judges included:
“These were unprecedented amendments through which people ought to have been consulted. Extending the term Parliament amounts to a breach of social contract”;
“It amounted to an attempt by Parliament to override the power of the people”;
“Parliament didn’t have authority to amend its term without holding a referendum and it was done unconstitutionally”
There is another compelling reason for the “constitutional amendment option” to be legally non-viable in the prevailing conditions of Ethiopia and so near to the end of Parliament. The amendment of a fundamental pillar of the Constitution would require extensive public consultation and participation both federally and regionally. How could this be possible, as alleged by the Government, under the existing state of emergency due to Covid-19 Pandemic? It is contradictory. This drives a coach and horses through the central argument of the ruling cliques for a postponement of the election based on the danger of the Corona Virus Pandemic.
(iv) To seek Constitutional Interpretation of the “constitutional crisis” created by the failure to hold the General Election as stipulated by the Constitution.
To seek a “Constitutional Interpretation” is a total cop-out. It begs the question. What is the constitutional question the House of Federation is expected to interpret? There is no “constitutional crisis” except the utter failure of the Government to prepare and conduct the General Election according to the Constitution when it had two and half years to do so. This is an issue of legality not constitutionality. Of course, this is a ploy to arm twist the House of Federation (given the majority of supporters of the Cliques in the House of Federation) to recommend one of the three options. This is a completely cynical but profoundly undemocratic and unconstitutional ploy to extend the life of the House of Representatives and the House of Federation, hence the governing Clique’s. One can guess at the outset the option that would be recommended by the House of Federation would be to amend the Constitution in order to extend the term of both Houses and the ruling clique.
2.3 Yet, there is an obvious legal path, not a constitutional option, to challenge the Government’s decision to postpone the General Election. As in many democracies, there is a role for the Federal Supreme Court to adjudicate on the responsibility of the Government to conduct an election according to the law. Since the constitution is very clear on this. The issue is not about constitutionality (to be resolved in the House of Federation) but the legal responsibility of the Government to discharge its responsibility according to the law and in court-of-law. Legally and theoretically this would be the appropriate route given it is a matter of legality rather than constitutionality whether to hold or not to hold an election on a constitutionally prescribed date. The Federal Supreme Court could force the Government to hold the General Election according to the law (e.g. Iraq and Uganda). The possible outcomes of a case brought to the Ethiopian Federal Supreme Court against the Government for not holding the General Election on the constitutionally prescribed schedule would be either to obey the Supreme Court (if ruled against the Government) and hold the General Election on time, or resign (if the Government believes it cannot) and call a general election. On the other hand if the Federal Supreme Court were to agree with the Government’s position it would find it impossible to back it up by referencing to the Constitution since there is no constitutional provision for postponing a General Election. In essence it is a loss-loss (dead-end) prospect for the Government’s position via the legal (court) route. That is the reason why an essentially legal issue of whether to hold an election or not is masked as a constitutional issue. I think this need to be challenged via the legal route. The problem with this for democratic federalists is the neutrality and fairness of the President of the Federal Supreme Court is seriously compromised. The President is on record for transgressing her remit by becoming completely subservient to the Executive arm of the Government. It goes without saying the Federal Supreme Court, filled by Neo-Nefetegna cronies of the PM, would rule in favour of the ruling Cliques even when there is no constitutional provision for postponing a general election, but it may be worth trying (e.g. by parties, civic organisations or any citizen) at least to debunk the fabricated constitutional crisis and the false options offered by the governing group. This would also serve to underline that to hold an election or not is not a constitutional issue but of legality.
3. There Are No Constitutional Remedies for Unconstitutional Act, Only Legal Consequences
3.1 The careful examination of the options offered by the Government as a way forward are each unconstitutional and legally non-viable. This is a fabricated and spurious “constitutional crisis” designed to prolong the life of the illegal Government. Hence, there are no constitutional remedies but only legal consequences, which is the de-facto illegality and illegitimacy of the ruling group in control of the Government now and even more past the election date.
3.2 The governing coalition led by EPP is illegal and illegitimate to begin with. To start with, the EPP has not even met all the conditions of the Ethiopian Electoral Law governing the formation of parties for the purpose of constituting and forming as a legal party. The reasons are many. The parties that formed the EPP have not been dissolved by legally assembled members of their respective Congresses. The EPP has not been formally and legally formed at a congress with elected Chair (president), Vice-Chair (Vice-president) and Audit Board. Even if granted as a legal party for the sake of argument, the EPP cannot legally assume or inherit the mandate given to the elected EPRDF. The EPRDF programme and manifesto as well as ideology on which it was elected are diametrically opposed to those of the EPP’s. Moreover, the EPRDF mandate to govern cannot be transferred to a new and unelected party. Unlike material property and companies, political mandate and power is non-transferable. Upon the demise of the EPRDF, Parliament should have been dissolved and a new election called rather than usurping state power. So technically and legally, the existing governing coalition is illegal and illegitimate.
3.3 For the already illegal and illegitimate EPP ruling Clique to prolong its rule by postponing the election by illegal and unconstitutional means is adding insult to injury. As such must be opposed resolutely.
4. A Perspective on the Way Forward
4.1 It is vitally important for democratic federalist forces to hold a clear and firm stance on the illegality and illegitimacy of the ruling coalition led by EPP and must oppose in no uncertain term its political and unconstitutional manoeuvres to extend its life. This is an epic struggle to stop a brutal and emerging Mark II Derg dictatorship.
4.2 Upon the expiry of the term of this Parliament and in the absence of a legitimately elected federal government and the existence of authority/power vacuum as well as in order to preserve the unity and security of the country internally and externally, all democratic federalists need to have a unified aim and strategy for safeguarding self-determination and the federalist order and transitioning peacefully, legally and securely to a democratic election as soon as possible; possibly under “a care-taker transitional government of all nationalities”. This could be buttressed or complemented, for example, by De-facto State in Tigray, Gadissa Hogenssa Oromo / Abba Gadaa Care-Taker Government in Oromia (e.g. as suggested by Dr Tesegaye Ararsa) and so on. The strategy needs to consider the potential and constructive role of the armed forces (which being non-party political and multi-national has the duty to safeguard the Constitution and the integrity and independence of the Country) to facilitate a peaceful, democratic and legal transition to a free, fair and credible general election.
4.3 The formation of united fronts and forums of federalist forces is encouraging and is bearing fruits with different levels of expectations. This is critical and much more work is required. Strategic collaborations need to grow, develop and synergise on all and wide fronts. However, it is also becoming clear that there is not an overall unified view yet on the nature of the ruling party or how to deal with it amongst some federalists. On the downside, there is “Meisonian” political currents amongst some federalists with a tendency to appease or being ambivalent (i.e. offering “critical support”) towards the emerging EPP dictatorship in Ethiopia. This political current appears to seek to have a “dialogue” or “negotiation” with the current Government at any cost and without the strategic anchor of the preservation of the Federal Constitution being the overriding stance, whilst at the same time it has characterised the ruling Cliques as fundamentally coercive, anti-federalist and anti-democratic. Strategic and tactical positions vis-a-vis the Ruling Cliques appear at times to be confused. Whilst acknowledging the need for principled dialogue and fighting by legal and peaceful means to the extent possible (even when the Government is using state violence to silence democrats, nationalists and federalists) it is also important to critique political opportunism and vacillation towards the Abiy Ahmed’s cliques when and where ever it appears. What about if the ruling Government is unwilling to negotiate and is dictatorial? Can mere dialogue or negotiation be a sole or a be-all and end-all strategy when confronting an emerging dictatorship? This is akin to those in the mid-seventies (at the critical juncture of the revolution and the struggle between the democratic and nationalist camp on the one hand and the forces that supported the Derg on the other) who appeased the emerging Derg fascist military dictatorship by offering the so-called “critical support” or by pleading for dialogue and negotiation with the Derg instead of demanding an election to form a transitional peoples government and demanding the self-determination of nationalities. History tells us the end result of Meisonian opportunist and appeasement politics as well as the left opportunism and commandism of the EPRP leadership, the remnants of whom have degenerated so far to the extreme right by becoming champions of the Neo-Neftegna One-Nation, One-Language and One-Religion politics. Paradoxically this is the convergence of extreme right and left opportunism, giving credence to the adage that extremes converge. What is required of the present day politicians is not to repeat the political opportunism of the past. The principal and fundamental divide (camps) in the present politics of the country that should inform and determine strategic and organisational positions is the struggle between democratic nationalists who want to preserve, expand and implement democratic federalism and self-determination and those who seek to restore a Neo-Neftegna One-Nation, One-Language and One-Religion order of past Ethiopian regimes. Vacillation on this or straddling both divides is the mark of political opportunism and a recipe for failure.
4.4 Given the failure of the Government (in cahoots with the ENEB) to hold the general election according to the Constitution, Regional State Councils should hold elections in their regions. This is with a view to submitting to their electorates and to renewing or otherwise their mandate.
4.5 The call by the Regional Government of Tigray for holding the election according to the Constitution is to be welcomed by those with a scintilla of democratic and federalist aspiration. As a sovereign nationality, the Regional State has the constitutional rights to legislate, including the right to conduct regional elections for the purpose of submitting to its electorates and to seeking to renew or otherwise its mandate. Article 52 (1) stipulates that “All power not given expressly to the Federal Government alone, or concurrently to the Federal Government and the States are reserved to the States”. Articles 102 also stipulates that “There shall be established a National Election Board independent of any influence, to conduct in an impartial manner free and fair elections in Federal and State electoral districts”. Reading the two Articles together, the establishment of an electoral board is not expressly and solely the preserve of the Federal Government alone (underlined by author). The logical inference is that the Constitution does not expressly exclude the setting up of regional election boards. Moreover, when the ENEB failed in its duty to adequately prepare and conduct elections at federal and regional level, it is imperative that regional governments that have a stake in the Constitution set up their own regional electoral boards that are sanctioned by State Councils. What is a legitimate issue is to set up those electoral bodies through public consultation and in a manner that they are free, fair and credible when discharging their responsibilities. It is important to recognise that Electoral Boards are instruments or means for executing rights enshrined in the Constitution. What is critical is the right to legislate and implement policy in accordance with the letters and spirit of self-determination. In this respect the position of the Regional Government of Tigray is not only constitutional and legally right but is also politically necessary in order to advance hard won rights of self-determination in its Region.
4.6 The argument that Regions have no legal basis to conduct regional elections using regional instruments of execution (e.g. regional electoral bodies) is fundamentally ignorant of the degree of sovereignty that nationalities have in the EFDR Constitution. The basis of such erroneous argument is based on the lack of understanding of and belief in the current democratic federalist Constitution and the politics of “extra-constitutional or extra-legal transactional politics”, which is prone to the danger of absolutizing the political horse-trading of elites, vacillation and ultimately political opportunism. Let alone the right and ability to legislate regionally and set up regional bodies (which are much lower thresholds of democracy and self-determination) Ethiopian nationalities have the full spectrum of the right of self- determination, including and up to secession as stipulated in Article 39. No less and no more. The acceptance of the implications of this fundamental dividing line has been the litmus paper of the politics of national and class struggle in Ethiopia over the last fifty years; and remains even more relevant today. The principled, resolute and steadfast position of the Regional State of Tigray and the governing party, the TPLF, in confronting the emerging dictatorship of the Abiy Cliques must be commended and emulated (as well as being constructively critiqued when appropriate and necessary by fellow nationalists and federalists) rather than being opportunistically smeared at (in the same vein as the Neo-Neftegnas do) by those who are capable be doing more in their regions in the struggle to safeguard federalism and self-determination.
4.7 In the final analysis and as we move closer to the end of the current Parliament, democrats, nationalists and federalists must have the moral and political courage and foresight as well as the unity and strategy necessary to counter the ever more coercive, elaborate, divide-and-rule politics and tactical/legal manoeuvrings of the emerging dictatorship of the EPP led by Colonel Abiy Ahmed. Individually and collectively, they would be responsible if they allow this to happen wittingly or unwittingly. United and strategic they stand; divided and opportunistic they fall, with historic consequences (far and exceeding the negative outcomes of the 1974 Ethiopian Revolution) for the fate of the unity of the country; the self-determination of nationalities and peoples; and right of citizens to live in peaceful, secured and democratic future. Keeping Safe from Corona Virus and Saluting May Day 2020!