Commentary: How would the unelected assume state power constitutionally? The hard question the CCI/HOF need to address

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Partial view of members of the House of Federation (HoF). Image: HoF archive

By Wondwossen Demissie Kassa


Addis Abeba, June 01/2020 – 
The country is waiting for the Council of Constitutional Inquiry (CCI) and House of Federation’s (HOF’s) decision on the consequence of the COVID-19 induced postponement of elections on the constitutional order.  In an earlier article I have argued that the CCI/HOF has to consider rejecting the referral for constitutional interpretation. In this article, I will be pointing to the hard question that needs the attention of the constitutional interpretation bodies in the event that they seize and entertain the matter.

The
Crux of the Divergence

That
COVID-19 and its induced state of emergency are good enough to cause postponement
of the election has not been seriously opposed except by the TPLF. The more
serious contention relates to who will be running the Federal and the Regional
Governments once the terms of the incumbent governments have expired in early
October 2020 pending the next election.

Some
in the Opposition have suggested that because the constitution requires
election as the only means of assuming power once the terms of the incumbent
governments expire there is no way the Constitution allows the incumbent
government to continue to be in power. Because the answer to this question
cannot be found from the Constitution, they argue, negotiation
among political parties on how to run the country during this period of time is
needed. They suggest alternatives such as establishment of a transitional
government
.

The
Prime Minster in a video statement on the matter has explicitly dismissed
any option other than searching for a constitutional way of extending the terms
of the incumbent governments. The government rejected such proposal as being
not within the purview of the Constitution but proposed only to grab power in
an unconstitutional way.

Essentially
both are invoking the Constitution on their behalf. The Opposition claims that
because the Constitution prohibits assumption of power except through election
extending the term of the incumbent governments beyond their terms would be a
violation of this principle of the Constitution. The government, on its part, contends
the Constitution allows assumption of power only through election means it does
not recognize negotiation among the political parties, care taker government or
transitional government as means of assuming power.

Because
election would not be the source of power in either of the proposals (extension
of the terms of the incumbent government or other political arrangements) if
the constitution requires election and only election as the only
constitutionally recognized means to assume power  neither of the proposals would satisfy the
constitutionally required mode of assuming power. It follows that both would be
correct in dismissing the other side as proposing unconstitutional way of
seizing power.

On
the other hand, apart from dismissing proposal of the other as
unconstitutional, neither demonstrates that in the absence of election their
proposal is a constitutional way of assuming power. Indeed, the opposition has
acknowledged that the solution they proposed is extra constitutional claiming
that the Constitution does not have a solution to the problem.  

The
government has preferred to refer the matter for constitutional interpretation
while at the same time pre-emptively signalling
that it would expect the CCI/HOF to come up with a constitutional
interpretation that would allow elections to be postponed and terms of the
incumbent governments extended. 

Election
is the
normal
way of assuming power

As
per the FDRE Constitution elections are the source of political power. As per Article
54 (1) membership in the House of People’ Representatives
the highest authority of the Federal Government— is to be secured on the
basis of direct, free and fair elections held by secret ballot. As stipulated
under Articles 54 (1) and 58 (3), the term of the House composed of elected
members is five years. By virtue of Article 56 of the Constitution, the
Executive is formed from a political party, or a coalition of political parties
that has greatest number of seats in the House of Peoples’ Representatives. The
Executive has the same term as the House of Peoples Representatives.

The
Constitution envisions periodic elections every five years. Article 58 (3)
requires that at the latest elections for members of an incoming House be
concluded one month prior to the expiry of the outgoing House’s term. Under
normal circumstances these constitutional provisions require that the 6th
general elections be finalized early September 2020 and the outgoing House and
Executive are expected to transfer power to the incoming House and Executive
early October. 

 COVID-19 has already disrupted this scenario.
Because pre-election activities have already been suspended even in the
unlikely event that the pandemic subsides any time soon, it is already too late
to undertake the general elections within the time the Constitution envisions
to be conducted. No new elected legislative or executive body will be available
to take power from the incumbent legislative and executive body in early
October 2020. 

It
follows that whoever assumes power in the interim period
(between the time the terms of the incumbent
governments expire and the time a new legislative and executive bodies are
established through election) it would be an unelected body. No election, no
elected body. Thus, it is obvious that election — the ordinary means of assuming power —would not be a
source of power for this period of time.

But
Election is
not the only way
of assuming power constitutionally

It
follows that if election and only election were the only constitutional source
of power, there would be no party to satisfy this precondition for this period
of time. However, the Constitution does not seem to be that rigid. Article 9
(3), the most pertinent constitutional provision on this matter, stipulates
that “[i]t is prohibited to assume state power in any manner other than that
provided under the Constitution.

Article
9 (3) is so carefully worded that it can accommodate the situation that we are
in.  Instead of rigidly prohibiting
seizing power in any manner other than through election, it requires
only that power be assumed in accordance with the Constitution. It is phrased
wider than authorizing assumption of state power “only through election”.   

Prohibiting
assumption of power except through election is different from
prohibiting assumption of power otherwise than in accordance with the
constitution.
While the former makes election and only election as the
means of assuming power, the latter is open to other ways of assuming power
provided that they are compatible with the Constitution. Unlike the former which
would have made the Constitution unhelpful to deal with the current situation,
the latter, by recognizing means of assuming power other than election,
accommodates the current situation where it has become impossible for election to
be a source of power. 

As
noted above, the ordinary way of assuming power is election. However, from the
wordings of Article 9(3) the constitution is open to other ways of seizing
power provided that these are compatible with the Constitution. That is more
so, when we are in a situation where the ordinary way of seizing power is
unavailable for valid grounds.  Because COVID-19
has made it impossible for election to be conducted, under the current state of
affairs election cannot be the source of power.

Those
who were involved in the drafting and approval of the Constitution confirmed
the validity of this reading of the Constitution.  In their statement during the CCI’s public
hearing on the matter, some have  told
the CCI that the essence of Article 9 (3) is to prevent assumption of power
through extra-constitutional means such as coup d’etat, succession, and terrorism.
This is far from prescribing elections and only elections as the only source of
power.

What is the other constitutional way of assuming power and who is eligible for that?  

As election — the ordinary
means of assuming power — has been suspended from being source of power, this is the time to search for and resort to the
other constitutional way of assuming power that Article 9(3) accommodates.  

As noted, Covid-19 induced state of emergency has
resulted in the postponement of the elections. However, that does not
necessarily entail extending the terms of the incumbent governments. Postponing
elections and extending the terms of the incumbent governments should not be
seen as two sides of a coin. The proposal that the terms of the government
shall be extended till the postponed election is conducted requires its own
separate justification.

While on pragmatism and efficiency grounds one may
support letting the ruling party to stay in power as better than other alternatives
such as establishment of a care taker or transitional government, nothing is
apparent from the Constitution to favor the incumbent over the other.  Because assuming constitutional power without
being elected is an unknown territory, it is for the CCI/HOF to explore, define
and apply it to the current situation.

The CCI/HOF has faced a daunting task of reading into the Constitution how an unelected body may assume state power constitutionally. As the guardian of the Constitution, the HOF has to live up to its heightened responsibility by giving a reasoned decision as to how a state power may be assumed in a constitutional manner other than through election. By so doing, the CCI/HOF would bestow state power upon the unelected body that it decides to be qualified for that. AS

__________________________________//______________________________

Editor’s Note: Wondwossen (PhD) is a faculty member at the Addis Abeba University (AAU) Law School. He can be reached at: wondwossend@yahoo.com  

The post Commentary: How would the unelected assume state power constitutionally? The hard question the CCI/HOF need to address appeared first on Addis Standard.

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