Commentary: Ethiopia’s crisis induced opportunity to seize a historical constitutional moment

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Chief Justice Meaza Ashenafi, President of the Supreme Court, is also the chairwoman of the
Council of Constitutional Inquiry (CCI)

Solomon A. Dersso (PhD) @SolomonADersso

Addis Abeba, May 12/2020 – Depending on whether we seize the opportunity arising from it, this constitutional crisis could be a necessary trouble, a blessing in disguise, for Ethiopia. What determines whether a crisis leads to success or failure is not by how one escapes the challenges it presents but by how one uses the opportunities it brings with it. It is not different for the current constitutional crisis facing Ethiopia. 

As in every crisis, there is thus an opportunity that this crisis
presents. But our capacity to recognize this opportunity and most importantly
to seize it necessitates that we remove our partisan lenses, allow an expert
driven and adjusted constitutional process and opt for a political process that
assures a place for all in the management of the affairs of the country and
nurtures a politics of accommodation and compromise over the zero sum politics
of the flexing of the political muscles by political actors. 

The opportunity 

There are times in the life of a country that present a major
constitutional moment for forging a national consensus bringing an end to a
political polarization that creates the conditions for regular sparks of
contestation and episodic eruption of violent confrontations. Despite all the
uncertainties and the trading of accusatory exchanges among the contending
political forces of the country it has created, the constitutional crisis in
Ethiopia can also be a unique constitutional moment in the trajectory of the
political transition of the country. 

This is a major constitutional moment that should be seized with.
There are two ways by which the current context presents such constitutional
moment.

First, the constitutional crisis presents an opportunity for rectifying some of the limitations in the constitutional dispute adjudication system of the country and set a defining precedent for legally respected and more legitimate constitutional adjudication process, key for nurturing constitutionalism and rule of law. In a tweet announcing a call for constitutional law experts to make expert submissions to the Council of Constitutional Inquiry (CCI) tasked to consider the request from Parliament for constitutional interpretation, President of the Supreme Court, who also chairs the CCI, Meaza Ashenafi stated “Such participation is important to demonstrate to the public the integrity of the process and the outcome as well as to cultivate a positive tradition of constitutionalism in Ethiopia.”

Second, the current context avails a unique constitutional moment
for achieving a national consensus that this country desperately needs and that
has proved elusive during this transition. The sudden upsurge in the political
temperature of the country and the zero-sum confrontation that has erupted is a
manifestation of a lack of national consensus and dialogue-based settlement.
This absence of a shared national consensus is sure to precipitate the eruption
of political storm and even violent confrontation whenever some politically
relevant development arises. This time around this politically relevant
development which triggered the emergence of the current political contestation
is the constitutional crisis arising from the inability of the country to hold
elections within the time set by the Constitution. 

Seizing the opportunity from the constitutional interpretation
process 

The reason why this constitutional moment is critical is not,
despite but because of the flaws of our constitutional interpretation system.
As noted in an earlier op ed and pointed out by my peers in the legal
fraternity, in entrusting constitutional adjudication to a body that is made up
of people who are members of the ruling political party, lacking technical
expertise in constitutional law and makes decision through majority decision as
opposed to based principally on constitution based judicial reasoning and
analysis, the Constitution has assigned constitutional interpretation to a
body, as Yonatan Tesfaye put it, that ‘is not a
competent, impartial, and suitable umpire that can police the
Constitution.’ 

Given this institutional flaw of our system and given the
historically important nature of this constitutional interpretation, the CCI
and indeed the HoF face the unenviable challenge of rising to the occasion to
overcome the limits of the constitutional design carving out a legitimate
process and delivering a landmark constitutional jurisprudence that puts the
constitutional and political trajectory of the country on a solid path. 

Admittedly, this is not an easy task at all. There are
understandable widely held perceptions of crisis of legitimacy in our
constitutional adjudication process. Certainly, while overcoming this fully can
only be accomplished via constitutional amendment. enhancing the legitimacy of
this process is not insurmountable either. It however requires the adoption of
three adjustments I pointed out in my earlier piece. 

The first is what I call procedural adjustments/innovations.
Ordinarily, it is a requirement of the principle of legal standing that only
people whose interest is directly affected by a case can present a matter
before a judicial process. If this requirement was to be applied to the current
process, it would mean that only the House of People’s Representatives would
have the legal standing to make submissions on the matter presented for
constitutional interpretation. Such would be open to attacks for lacking
legitimacy and being decidedly skewed in favor of the incumbent
government. 

By adopting procedural adjustments, this major drawback of the
process arising from the nature of the design of the country’s constitutional
adjudication process can be significantly remedied. The procedural adjustments
include the adoption of a liberal requirement of standing that allows any
interested member of the public to make submissions. 

This adoption of a liberal approach to legal standing with respect
to this case can be complemented by an amicus process whereby legal
practitioners with expertise in the subject matter (in this instance
constitutional law experts) are allowed to present expert and independent
submissions as ‘friends of the Court’. The announcement by the President of the
Supreme Court inviting constitutional experts is such a procedure. There is no
better time than this for writing a new constitutional story for the country
and for deploying the constitutional expertise of the country to this end than
this. It is thus incumbent on those with constitutional law expertise to assume
the responsibility this situation demands to use this opening for enabling the
country write this new constitutional story.

Clearly, this amicus procedure is no doubt very significant and a
step in the right direction. But it is not enough. 

For the announcement of the President to achieve the objective in
her words ‘to demonstrate to the public the integrity of the process and the
outcome as well as to cultivate a positive tradition of constitutionalism in
Ethiopia’, the amicus procedure may not be enough. It also requires allowing
other members of the public to make submissions to the CCI/HoF. 

The second adjustment is structural. This has two aspects. The
first dimension concerns the composition of CCI, which can be expanded with
addition of limited number of independent legal professionals to further
buttress its legitimacy. The second dimension should also include enhancing
CCI’s role vis-a-vis HoF by limiting the latter’s review power such that it can
REJECT the CCI’s proposal only on the basis of constitution based judicial
reasoning and by a unanimous vote. 

The third is what I call substantive adjustment. This relates to
not only the framing of the questions but also how the questions are
approached. In terms of the question to be addressed, it is advisable to frame
it in a way that go beyond a narrow technical legal answer on extension of the
term of office of parliament and government. It should be cast in a way that
requires articulation of broader principles & parameters on ‘the how’ of
decision-making during the additional time. In terms of how the questions are
approached, it is necessary to recognize that this exercise is not just about
the immediate question of overcoming the challenges that the current crisis
presents but also about the landmark constitutional jurisprudence it can
establish for putting the trajectory of the country on solid foundations for an
inclusive, just and constitutionally sound system of governance. 

I am very much encouraged by the announcement of the President of
the Supreme Court establishing the amicus procedure. It is a clear
demonstration that we are in a different time in terms of our constitutional
adjudication process. This is no small feat. President Meaza and her team
deserve commendation. 

I also believe that this can be expanded and it needs to be
expanded to also reflect the foregoing procedural, structural and substantive
adjustments. These adjustments would guarantee this constitutional
interpretation process to achieve its full potential not only in earning the
confidence of the public across the political and social divide but also in
achieving the potential of this constitutional moment to establish a landmark
constitutional jurisprudence. 

Seizing the constitutional moment of the crisis by pursuing a path
of forging national consensus 

While these adjustments undoubtedly expand the space for
participation and infuse a huge amount of legitimacy into the constitutional
interpretation process, this process would only travel part of the distance to
enable the country fully utilize the opportunity to this historical
constitutional moment. The constitutional interpretation process stands to
contribute to the full realization of the opportunity from this historical
constitutional moment both by giving constitutional anchoring and encouraging
the continuation and widening of national consultation/dialogue. 

As many other Ethiopians with deep desire for the success of this
transition in consummating the ideal of achieving a genuine democratic
transformation pointed out, I have written on a number of occasions
making a case for and outlining the necessity of anchoring the transition on
forging a national consensus. 

In so many ways, the political settlement of the post 1991
political order of the country has clearly come to an end. While that
settlement has been fraying for several years, the events that happened during
the last months of 2017 & in early 2018 marked its demise. 

As has also been discussed variously that PM Abiy’s rise to the pinnacle of power reflected the end also of the power alignment that dominated the political landscape of the country for over two decades. This change saw the end of the domination of the TPLF in the EPRDF and the emergence of the beginning of the end of the EPRDF. In Addition to the weakening of the EPRDF and its eventual breaking up, the opening of the political space paved the way for various political forces, including those that returned from exile and their foreign bases, to compete for a foothold in the political system.

As the transition has continued to unfold, the country finds
itself in a condition of uncertainty arising from both the end of the post-1991
settlement and the lack of the forging of the new settlement. With the
realignment of the power structure of the country still unfolding, the country
also has witnessed recurring instances of political confrontations that on
occasions led to violence that claimed the lives of people and displaced many
from their homes. 

Although it is not uncommon to attribute the recurring instances
of troubles the country encountered during the past two years to the widening
of the political space in Ethiopia, that democratization is not the source of
the problem cannot be overemphasized. The main challenge of the country lies in
the lack of the emergence of a new settlement replacing the post-1991 political
settlement that collapsed with the emergence of Abiy as the new leader of
Ethiopia. The crises the transition has encountered are a result mainly of the
fact that the democratization process is not founded on a national settlement.
As pointed out earlier, this is also the source of the eruption of the current
political confrontation, although the constitutional crisis is the
trigger. 

Clearly, there is a need for filling the gapping vacuum resulting
from the absence of the foregoing of a new national consensus replacing the old
if Ethiopia is to avoid the episodic eruption of political storms whenever some
politically important development arises.

Surely for this to happen the onus is on all the contending
political forces in the Ethiopian political arena with the wider members of
society bringing their weight in pushing these forces to assume their
responsibilities to this end. 

On the one hand, there is a need for removing one of the major
shambling blocks for achieving this. This has to do with the past, the past in
particular of the EPRDF. An important but by no means the only aspect of this
is, in the words of René Lefort, TPLF’s ‘rigidity and
refusal to make a sincere assessment of its controversial rule’. This has made
it difficult, if not impossible, for many to give the TPLF any benefit of doubt
when speaking out even on matters of legitimate concern. Taking into account
weight of responsibility for the past, the TPLF has to take the lead in
engaging in such sincere assessment of its role for the wrongs of the past. It
owes such ‘a sincere assessment of its controversial rule’ not only to enable
itself and the country move forward but it also owes it to its past and future. 

On the other hand, there is a need to build on the initiative from
PM Abiy of consisting with the opposition to have a wider dialogue and
bargaining among the country’s political and social forces. This also requires
flexibility and firm commitment for making concessions in exchange for
recognition of the authority of the government. 

Ethiopia is at a major constitutional moment. This presents the country with a unique opportunity to use the constitutional interpretation process for establishing a landmark constitutional jurisprudence and to use political contestation that the constitutional crisis triggered for resolving the major vacuum in the political process that has been unfolding during the last two years. Such a forging of a national consensus guarantees for various political forces a place in the management of the affairs of the country and nurtures a politics of accommodation and compromise key for institutionalizing the country’s democratization process in the place of the zero-sum politics and the accompanying political instability that the vacuum of lack of national consensus tends to perpetuate.  AS

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Editor’s Note: Solomon A. Dersso (PhD), currently
serving as the Chairperson of the African Commission on Human and
Peoples’ Rights, is founding director of Amani Africa. He also serves as
Adjunct Professor at College of Law and Governance Studies, Addis Abeba
University.

This op:ed reflects the personal opinion of the
author and the views expressed are not attributable to any of the
institutions to which the author is affiliated.

The post Commentary: Ethiopia’s crisis induced opportunity to seize a historical constitutional moment appeared first on Addis Standard.

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