By Shiferaw Abebe
There has been much talk lately about the constitution – its contents, its applications, its defects, and the opportunity and the timing of making amendments to it. There are several reasons why the constitution attracts attention and criticisms. To start with the obvious, it was crafted to custom fit TPLF’s ideology and political agenda. It didn’t include the input and honest participation of Ethiopians at large and Amharas, in particular, whom TPLF viewed collectively as oppressors. Like its predecessors, this constitution was superimposed on Ethiopians by a minority group who snatched power by force.
Second, the current constitution is an aberration – there is no other constitution like it anywhere in the world. Even countries with larger numbers of (less intermarried and intermingled) ethnic groups have avoided framing their constitutions ethnically and for a good reason, namely to minimize inter-ethnic tensions and conflicts. TPLF, on the other hand, framed the current political system and its legal instrument – the constitution – ethnically for the very purpose of creating division and tension among ethnic groups so that it could, as a minority group, rule the country with unmitigated tyranny.
Third, the current constitution is essentially undemocratic. The inclusion of human and democratic rights of citizens is nominal, not only in the practical sense, but also relative to other provisions in the constitution. The constitution bestows all sovereignty on nations, nationalities and peoples (Article 8) with full rights to self- government and representation in state and federal governments (Article 39.3), unconditional autonomy including the right to secede from the country (Articles 39.1) and ownership of land and other natural resources (Article 40). These articles are the foundations of the current political system, which in essence prevent the exercise of the democratic rights of individual citizens, for example, from organizing and forming a non-ethnic government at the local or the state level.
Fourth, even at the federal level, the House of the Federation is exclusively reserved for ethnic representatives (Article 61), not citizens as such, and the constitution also unmistakably presumes the right of ethnic groups to be represented in the House of Representatives, which, as we know, is currently fully occupied by ethnic representatives. At this point, except through their ethnicity, individual citizens are virtually deprived of any practical avenue to be represented in the local, kilil, or federal executive and legislative bodies.
Fifth, whether one agrees with the above criticisms or not, one cannot deny the fact that the current constitution (or the political system it has legalized) has not worked for the country. Far from creating a harmonious relationships, it has given rise to more and deadly ethnic tensions and conflicts. The singular source of instability in the country today including the eviction and internal displacement of millions of Ethiopian is the constitutionally mandated ethnic political system.
Given the above, it appears there is a wide consensus at this point in time that the constitution needs a facelift of some kind. How much facelift or makeover it needs is open for debate and, in the final analysis, would be determined through political compromises. But, before getting there, two challenges – one technical and another substantive – would need to be resolved. The technical challenge relates to how one would go about amending or changing the constitution. Article 104 of the current constitution lays out how an amendment can be initiated and Article 105 how those amendments can be ratified.
According to Article 104, a constitutional amendment can be initiated by two-thirds majority vote of either chambers of the federal legislature or if voted by one-third of the state councils. Article 104 also mentions of a discussion and decision by “the general public and those whom the amendment of the constitution concerns” but nothing on how this is implemented or play a part in the ultimate decision.
Once initiated, Article 105 stipulates two rules for ratifying an amendment. If an amendment involves Chapter Three of the constitution, it would require the support of all state councils and two thirds of the House of Representatives and two third of the House of the Federation. For Amendments in other parts of the constitution, two-thirds of the state councils and a combined two-thirds of the two chambers of the federal legislature would be required. In other words, Article 105 gives each and every one of the nine state councils a veto power to kill any amendment under Chapter Three.
Chapter Three has two parts, the first dealing with human rights and the second with democratic rights, where Article 39 is contained and, obviously, the reason why TPLF made this chapter sacrosanct. Article 39 states, among other things:
Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession (39.1), and
Every Nation, Nationality and People in Ethiopia has the right to a full measure of self-government which includes the right to establish institutions of government in the territory that it inhabits and to equitable representation in state and Federal governments (39.3).
It follows, the current ethnic political system can last an eternity as long as these two sub-articles remain intact. TPLF’s trick of ensuring these articles remain untouchable is through Article 105 that gives TPLF (and each of the other nine states) a veto power to kill any amendment to Article 39.
Amending or opening up the constitution…
Constitutional amendments as a rule involve adding or repealing specific articles, keeping the architecture and building blocks of the constitution intact. If the intent in Ethiopia’s case is to effect significant change to the current political system, the constitutional amendment route won’t do the job at all. As pointed out, removing the consequential articles using the constitutional rules (Articles 104 and 105) is virtually impossible.
The alternative, which TPLF conveniently omitted from the current constitution, is to open up the constitution for a fresh look, for a major overhaul. This would allow changing any part of the constitution including the amendment rules or rewriting the entire constitution. This can and should be done but requires overcoming the substantive challenge to doing that, namely, having first a clear understanding or agreement on what kind of political system the country should have going forward. A constitution does not create a political system; people or political players design or create the political system of a country, then draft a constitution to give it a legal basis. Back in 1995, TPLF didn’t draft the current constitution to create a new political system; that system was already put in place as soon as TPLF captured state power by the barrel of the gun in 1991. It would be therefore incumbent on all those who would like to see a serious reform to the current political system to push or initiate the political level conversation about what that reform should look like before talking about a constitutional change. These are issues neither time nor the upcoming election will resolve or make easier.
Some, including Prime Minister Abiy, have argued that a constitution is supposed to be a long term document. True, but only in so far as it is drafted through a negotiated and widely consultative process, and in so far as it remains relevant. In less than 90 years (i.e., since the first constitution was adopted in 1931), Ethiopia has had four constitutions, too many relative to other stable political systems. The reason is simply Ethiopia has witnessed three different political systems in the past 50 years (monarchy, socialist, ethnocentric), which has made frequent constitutional changes unavoidable.
Today, the country is once again at a crossroads in search of a stable political system. After hundreds, if not thousands, lost their lives in the popular uprisings of 2016 and 2017, TPLF’s hegemony has been knocked down, but the system it erected to divide and rule the country is still intact. Despite the positive political changes witnessed in the past one year and a half, there is a great deal of uncertainty about the future and a growing discontentment with the state of peace and security currently. Many are also worried that the Oromo Democratic Party is taking over TPLF’s hegemonic position, not necessarily or entirely based on facts, but because few trust the ethnic political system to be fair and impartial.
The relative democratic environment that exists today and the admirably civil political discourse we observe in formal venues, Ethiopian politicians should seize the opportunity and muster the courage to engage in an honest and free debate and negotiation to craft a new long lasting social contract for the country and let the Ethiopian people have their say freely for once!
It is no secret that some of the political players are keen on maintaining the architecture of the current political system, while others are convinced reforming the current political system is an existential imperative for the country. Bridging these seemingly diametrically opposed positions may appear insurmountable, but it gives more reason for engaging in a real and honest dialogue today for otherwise these contradictions will blow up to an unmanageable scale soon or late. No one can get everything they want, nor should anyone lose everything they stand for. There must be a negotiated solution, a compromise everyone will be fine to live with. There are good examples from around the world that could be instructive in a negotiated outcome where individual democratic rights thrive unhindered while ethnic equality and multiculturalism flourishes all at the same time.
All that is required is honesty, wisdom and courage.
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