ADDIS ABABA — The legal and political alternative we offer on the current situation of Ethiopia, must be one that can rescue us from the current Corona pandemic, maintain the state and help our smooth transition towards a more stable democracy.
The COVID-19 pandemic has affected economic, social and political undertakings in Ethiopia and across the world. The National Electoral Board of Ethiopia on March 31, 2020 announced it has suspended the time table for the 6th Ethiopian National Election due to the COVID-19 pandemic. The election was initially scheduled to be held on August 29, 2020. The announcement by NEBE triggered constitutional questions as to how and who governs the country as the terms of the House of People’s Representatives and Regional Councils expire.
Ezema has had extensive discussions with constitutional lawyers on this issue. These professionals have been studying and consulting as a High-Level Panel of Experts at length to advise us on how the constitutional vacuum can be resolved in a timely manner.
Ezema believes that there is a need for a strong government that can mobilize the people to overcome the multiple challenges we’re facing as a nation. And hence, we strongly believe the solution we propose needs to be one that matches our pressing needs as a nation.
Considering the horizontal relationship and the large number of existing political parties and its failure to allow for the existence of a strong government structure needed to overcome the external and internal challenges we face as a country, we are strongly against the proposition of forming a transitional government as a way out to the standstill. After evaluating all constitutional alternatives we have found amending the provision of the constitution that sets the term of the House of People’s Representatives and the time to hold the elections – Article 58 – in a way that will allow the House of People’s Representative to extend the election for not more than one year and ensure government continuity in time of emergency that makes holding elections as per the schedule impossible a straight forward, dependable, legitimate and, constitutional solution to the standstill we are facing. [Full Press release in English below]
A position statement issued by Ethiopian Citizens for Social Justice (Ezema)
The Covid-19 pandemic is known to have caused serious damage around the world. Besides, the grave dangers it has posed and continues to pose on people’s health and wellbeing, this pandemic has taken a serious toll on the economic, social and political conditions of many countries in the world. Although the hard impact of the pandemic elsewhere has not been felt in our country, the risks we face remains high.
In light of the experiences from other countries, we understand that there is still a risk of the pandemic suddenly hitting an overwhelmingly large number of citizens and leading us into a health-care crisis. With the rapidly increasing spread of Covid-19 cases in neighboring countries (Sudan, Djibouti and Somalia), and in particular Djibouti our doorway to the world and key economic partner, the Covid-19 poses a major threat to the eastern parts of our country and the nation at large. The impact of the measures being taken to contain the pandemic is taking its toll on the nation’s economy that is felt in every sector of the national economy. The global impact of this pandemic is also exacerbating the already struggling import and export trade, a situation that may not get back to normal anytime soon. On top of the pandemic, the Desert locust is also expected to have a significant impact on Ethiopia’s agricultural output as well as the growth of the gross domestic product.
In addition, it was recently announced that, up to two million Ethiopians will risk losing their job due to the severe economic recession caused by the Corona outbreak. In general, the negative effects of the virus on the economy and the decline in gross national product will have devastating effects on the country. In addition to the economic and social pressures, the pandemic has also put us in an unprecedented political situation in our history. The danger of the existing internal political problems and the external pressure in associated with the construction of the Grand Ethiopian Renaissance Dam are not matters to be taken lightly. The water filling of the dam scheduled to start in few months, is expected to heighten the pressure.
On March 31, 2020, the National Electoral Board of Ethiopia (NEBE) announced that it is suspending the time table for the 6th national elections which was initially scheduled for August 23, 2020 due to the Covid-19 pandemic. The announcement by NEBE triggered constitutional questions as to how and who governs the country as the terms of the House of People’s Representatives and Regional Councils expire. As a result, different political parties are proposing a solution they think will solve this impasse. Ezema has had extensive discussions with constitutional lawyers on this issue. These professionals have been studying and consulting as a High-Level Panel of Experts at length to advise us on how the constitutional vacuum can be resolved in a timely manner. We strongly believe that the solutions offered to avoid a potential constitutional and political crisis need to consider the following factors:
1. The solution we devise should be one that can help the country to get out of the political standstill in a short period of time.
2. Should create better opportunities for the development and strengthening of institutions
3. Should help to further the stability of the country and enable the country to carry on with a credible, fair and democratic electoral process.
4. Should be focused on the best, less costly and less time-consuming alternative that also provides for a strong government that is capable of addressing the challenges facing the country including the rapidly changing geo-political and security threats of the country and the region.
Ezema believes that there is a need for a strong government that can mobilize the people to overcome the multiple challenges we’re facing as a nation. And hence, we strongly believe the solution we propose needs to be one that matches our pressing needs.
To that end, we have looked at the suggestions from other entities, including legal professionals of our party as follows;
1. A political alternative forwarded by different political forces
The main idea in this regard is that, since the current government will lose legitimacy after September 2020, and since the constitution doesn’t allow for the government to remain in office beyond the time stipulated in the constitution, a transitional government constituted from different political parties should replace the current government and lead the country. This solution is impossible to implement since the idea does not take into account the current status of the horizontal relationship of existing political parties and the large number of political parties. Moreover, it does not allow for the existence of a strong government structure needed to overcome the external and internal challenges we face as a country. We are afraid that this option can lead us to a national crisis rather than solve the problems that we currently face.
2. Constitutional alternatives
2.1. Dissolution of the House of People’s Representatives by the Prime Minister and holding elections within 6 months in accordance with Article 60/1 and 3 of the FDRE Constitution: This option does not take into account the likely national and public safety risks that may arise within 6 months that would require legislation, and Regional Councils whose term would also be ending along with that of the federal government. And hence, we did not find it a viable alternative to the objective of having a strong government.
2.2. Declaration of state of emergency in accordance with Article 93 of the FDRE Constitution, and the extension of the election: an emergency decree is not a provision to extend the term of government and, as such, proclamation of State of Emergency does not automatically extend government authority. It is also not possible to make free and fair elections under the shadow cast by an emergency decree.
2.3. Requesting constitutional interpretations from the House of Federations in accordance with Article 83 and 84 of the FDRE Constitution: under this option, if the Council of Constitutional Inquiry is going to conduct its review of the case independently and without any external interference, it would be impossible to predict the outcome of the interpretation. Given the gravity of the issue at hand, we do not find it appropriate to opt for mechanism whose outcome may not be suitable and has a possibility to lead us back to one of the other options outlined here.
2.4. Amendment of the Constitution in accordance with Article 104 and 105/2 of the FDRE Constitution: While this provision could take time and could require a prolonged and difficult public consultation process under the current SOE, we still think it could provide a clean constitutional remedy with a clear enforcement procedure in the Constitution and respond effectively to the constitutional challenge we are facing.
Although Ezema firmly believes that there are many provisions in the constitution that need to be amended, our present condition does not allow for the implementation of a comprehensive constitutional reform and it will not serve the purpose of solving the current pressing constitutional challenge. Ezema believes that a comprehensive constitutional amendment requires national stability, an elected government that oversees the process and broader public participation. As something that needs to be conducted with serious caution, we don’t believe this is the right time to embark on a comprehensive constitutional reform. However, in order to overcome the standstill we now face, the provision of the constitution that sets the term of the House of People’s Representatives and the time to hold the elections – Article 58 – can be separately amended.
The amendment will allow the House of People’s Representative to extend the election for not more than one year and ensure government continuity in time of emergency that makes holding elections as per the schedule impossible. The amendment should clearly state that the government shall not engage in any activity that will have a lasting effect on the society and unnecessarily burden the incoming government after the election.
This, we believe, will provide the current constitutional challenge a straight forward, dependable, legitimate and, constitutional solution. The FDRE constitution under article 105(2) stipulates the amendment procedure for provisions of the constitution other than those under chapter 3, article 104 and 105 to be the approval of the amendment by 2/3 majority vote of the joint session of the House of People’s Representatives and the House of Federation and approval by 2/3 of the regional councils by simple majority vote. And we hold constitutional amendment of article 58(3) of the constitution stating the time of election in accordance to this procedure is the solution to the current political impasse.
If implemented, this solution would be in accordance with the constitution and, therefore, would close any loophole to challenge the remedy on constitutional grounds. It would also have a positive role in the upcoming election and the building of a democratic system in the country. The drawback raised against this option from different groups is in relation to the public consultation requirement stated for a constitutional amendment. We believe this gap can be filled/mitigated by consulting the public through its representatives and using alternative technological options. It is to be recalled that Article 98 of the constitution dealing with national census and article 103(5) of the constitution dealing with joint taxation powers of the federal and regional governments have been amended previously without going through the constitutional amendment procedures discussed above. The amendment we are proposing, however, should strictly follow these amendment procedures stipulated in the constitution. If this constitutional amendment is to be implemented it should also include extension of the terms of regional councils as well as the House of Federation.
Despite our Party’s strong belief that constitutional amendment is the most optimal way out of the current impasse, the House of People’s Representatives have taken the option of constitutional interpretation and refereed the issue to the House of Federation seeking for interpretation of Article 54/1, 58/3 and 93 of the constitution. Although we believe this option is not optimal on grounds we discussed above, we stress that the Council of Constitutional inquiry shall be independent of the government or any other body while carrying out the task of this constitutional interpretation. If the constitutional interpretation by the recommendation of the Council of Constitutional Inquiry result in the postponement of the election, then House of Federation should the postponement shall have a time limit not extending beyond a period of one year. The decision shall also prohibit the government from engaging in any activity that will have a lasting effect on the country that could unnecessarily burden the incoming government after the election.
In general, any alternative to be taken shall take in to account the difficulty we are facing as a country and shall help ensure national stability, peace and the establishment of a genuine democratic system. It should also enable an effective way out of the current constitutional crisis. In addition, genuine consultation with different political forces as well as civil society institutions on the process of democratization that will follow the current emergency situation as well as emerging national issues would help open the door to practice peaceful democratic engagement we desire to ease political tensions and also help increase the ownership feeling of different stake holders. Therefore, we request the facilitation of discussion forums on similar national issues for political parties.