While the House of Federation has stopped short of ordering military intervention, its latest moves in the dispute with Tigray are of questionable legality and efficacy.
In the latest development in an escalating dispute between the federal and Tigray governments, this week the upper house of parliament took three major decisions. First, the House of Federation ordered the federal government to cease all interactions with Tigray State Council and the cabinet, which it deems unconstitutional due to an “illegitimate regional election”. Second, it said federal fiscal transfers to the region would be suspended. And finally, in order to ensure the continued provision of basic public services, it said the federal government would deal directly with wereda, urban and kebele governments.The discord between the Tigray People Liberation Front (TPLF) government and the federal administration, which is exclusively controlled by the Prosperity Party (PP), has been ongoing for more than two years due to disputes stemming primarily from the power struggle within the former ruling coalition. Mekele’s decision to hold elections on 9 September for its State Council in explicit defiance of federal authority severely exacerbated the situation.
Furthermore, as it argued the June parliament decision to extend all governments’ terms until elections delayed by COVID-19, Tigray decided that after 5 October (the date it assessed to be the end of the previous governments’ legal mandates), the federal Parliament and Council of Ministers had no legal authority, and that federal proclamations, directives, and regulations issued after that date would not be applicable in Tigray.
In recent months, Addis Ababa had attempted to prevent the autonomous regional vote. The House of Federation (HoF) Speaker Aden Farah first sent a letter on 30 June warning that the federal government would take any measure necessary, including military intervention, in order to avert the damage to the constitutional order the illegal election would bring. It later said the elections would have no legal effect. More recently, Speaker Aden said the federal authorities could install a transitional administration in Tigray.
Though the reasons given by the House of Federation to extend regional governments’ terms are less than convincing, Tigray’s decision to ignore that decision was not constitutionally justified. This is simply because, as the constitutional umpire, only the upper house can say what the constitution is or means—no matter how disagreeable or unconvincing its interpretation is to the rest of us. Tigray’s government certainly cannot unilaterally decide what the correct interpretation of the constitution is.
Yet now, the HoF has issued the three orders that are of questionable constitutionality and efficacy.
Three strikes
Although the federal government does not recognize Tigray’s government, it appears that the HoF is prepared to accept that Tigray will have what it deems an “unconstitutional” government for an undetermined period. Although military intervention would probably be catastrophic, and so is by no means advised, this does not make any legal sense: the constitution does not envisage periods of unconstitutional government. Instead, as the guardian of the constitutional order, HoF has the duty to ensure that the unconstitutional situation is resolved according to Article 14(1) of Proclamation 359(2003), which governs federal intervention in regional states.
The second HoF order for the federal government to directly interact with local authorities does not seem practicable since the regional government would attempt to prevent it and the local authorities are not likely to be willing to interact directly with the federal government, bypassing their regional bosses.
In addition, the federal system was deliberately designed so that the central government does not have direct contact with local government. During constitutional drafting, there was a debate on whether local government should be recognized as the third tier of government. The argument in favor of recognition was to prevent regional states from using them as their own administrative agents, rather than being a democratically accountable level of government close to the people.
However, as is the case in many federal dispensations, the constitutional recognition of local government was viewed as a zero-sum affair by regions for two major reasons: First, the constitutional recognition of local government would result in the diminution of the status of regional states as political units and reduction in the powers they could exercise and resources they could control and mobilize. Second, and most importantly, there was apprehension that the federal government would use constitutionally recognized local governments as backdoors to interfere in regional states and undermine their autonomy.
This was why the constitution’s framers attempted to strike a balance by requiring states to establish democratically constituted local governments that still operate within their exclusive regional competence. The HoF order therefore is exactly what the framers feared and attempted to prevent, and would set a dangerous precedent.
The final order, suspending federal budgetary support to Tigray, is against the spirit of federalism, as the transfer of revenue to regional states is an expression of ‘federal solidarity’. In any federal system the most lucrative sources of revenue are reserved for a federal government because it has a broader mandate than the regions, it is in charge of managing the national economy, it is required to maintain equity across the federation, and it is in a better position to manage revenues.
States are left with least lucrative sources of revenue. Implicit (sometimes explicit) in this arrangement is that the federal government has the duty to share the revenue it collects with the regions. In fact, the federal government is not assumed to have exclusive ownership over the revenue it collects; it is simply a custodian of funds that it co-owns with the states.
Hence, in some federal constitutions, not only is the central government required to share the revenue it collects with the regions, but also the minimum amount that it has to transfer is legally defined. Granted, Ethiopia’s constitution does not explicitly make such transfers federal obligation, but it is implicit in the system’s design. The HoF decision to simply suspend all federal revenue transfers is hence a violation of the constitutional compact.
Most importantly, as a mechanism of restoring constitutional order’, suspending federal transfers is ineffective. Instead, it would lead to a reduction in the delivery of basic services to the people, while undermining the principle of ‘federal solidarity’.
Principled approach
Although the constitution should be the framework for resolving the tensions, given the precarious political situation the country is in, it would be unwise and dangerous to insist on strict adherence, such as arguing that HoF should order federal intervention. We are not in normal times and we need to find creative ways that will help us get peacefully out of this quandary. Tigray should be prepared to work with the federal government, despite its divergent constitutional interpretation. The HoF or the federal government at large need to transcended specific constitutional provisions and appeal to broad principles in the constitutions to try and break this political deadlock.
Broad constitutional principles are there for a reason: they serve a purpose that specific provisions fail to help us achieve. It may well be that the three orders of the HoF are intended to avoid federal intervention into Tigray, which is commendable—although it should be noted that Tigray’s leaders have suggested any budget cuts would be tantamount to a declaration of war. Regardless, the upper house and the federal government could do more considering the unthinkable consequences of failing to peacefully resolve the dispute.
As the institution whose role it is to “promote the equality of the peoples of Ethiopia…and consolidate their unity”, the HoF should refrain from ordering the government from taking measures which divide us. Instead, it should seek ways to deescalate, and set us on the path to greater cohesion.
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The article is impressively written from an academic perspective. The political practice in Ethiopia, however, is all taking power to rule and have a grip on resources. Good governance and transforming the life of people have been marginal concerns of political leaders–all lip service. Those who took power by force in the feudal era claimed kingship by claiming their lineage to the solomonic dynasty to give it divine justification. Constitutions that have been written were meant to justify power already assumed and for international consumption to create positive image. Elections one way or the other have been theatrical; and sadly time as well as resource wasting exercises. To speak of constitution as a way of resolving the power motivated crisis at the level of TPLF and the FG is deceptive. I personally have never ever seen a constitutional way of resolving power related problem in the country.The psyche dictating Ethiopian politics is taking power at all cost. Citing the constitution to deal with the problem would only complicate the issue and could be used to justify military action. The primary question is: Do the different political groups operating in the country believe that a country called Ethiopia exists? The constitution is very tentative on this question and in essence justifies the prevailing political crisis of power under the cover of Federalism Vs Unitaryism. Ethiopia has been more unitary under Meles than any other leader, for that matter. The notion Federalism vs Unitaryism is a cover up. Whether we like it or not the current power struggle between the FG and TPFL reminds me of the power struggle between Iyasu and Teferi . We will see as to who would end up as Iyasu and as Teferi, for the power drama has reached its climax. But who ends up either way would not bring stability. However the resolution of the drama could be done peacefully and ensure sustainable political stability only if the Ethiopian people say ‘Enough is Enough,’ as one voice and start a popular political process that all people in Ethiopia are equal and have their rights observed as citizens of the country irrespective of their ethnicity and religious affiliation.Technical rationale would not solve the crisis. Efforts in this regard by stakeholders should be grounded in the popular practices–what do the people say and want? The people of Tigray are expected to take the lead in this regards as their forefathers have done it. Ethiopia shall prevail.
Dear Hailom,
Thanks for the comment and is really stand out of the many Ethiopian elite’s parochial views. I concur what you have already argued because as far as recorded history of Ethiopia from Monarch to communist and current federalism nothing has changed they way country was ruled. Thus, shows all has been empty slogans. What this country needs is rule of law and agreed constitutional order than imposed one.
https://charity.gofundme.com/o/en/campaign/eritreans-support-tigrai-farmers
Request for Emergency Support to fight locust invasion in Tigray, Ethiopia
Dear all local, national, and international partners and concerned organizations
Recently, a large part of Tigray regional state is facing the worst desert locust swarm outbreak in decades. The swarms are extremely dangerous and threatening the lives and livelihood of millions of people in the region, destroying the food security and all the other positive developments made during the last two to three decades. Given the COVID-19 disaster, the people are now subjected to a ‘double pandemic’, the combined effect of which makes the situation hopeless.
The swarms are already destroying hundreds of hectares of maturing crops and pastureland. Without rapid measures, these swarms will threaten to further spread throughout has taken this emergency as its top priority and is trying to mobilize emergency funding to finance the purchase of modern locust combatting equipment, chemicals, tools, materials and provide transportation to volunteers to affected areas. The regional government, the local people and the diaspora community are doing their best to mitigate this emergency challenge has launched several initiatives both locally and abroad to mobilize resources, including opening this GoFundMe Fundraising To Fight Desert Locust in Tigrai:
We call upon you to stand in solidarity with the farmers and provide the most urgent financial support that is desperately needed to control this worst locust outbreak…..Donate Here!!
https://charity.gofundme.com/o/en/campaign/eritreans-support-tigrai-farmers
However, the resources will not be enough to address an emergency of this magnitude. This calls for a concerted effort by all parties, particularly national and international development partners, to support the affected population. If resources are not mobilized in time from all sources, this disaster will lead to all sorts of social and economic crises, including unmanaged internal and international migrations which will be adding to the regional and global refugee load, we are greatly concerned about what is likely to happen if the disaster is not mitigated as quickly as possible. In the spirit of resolving challenges at the source and with your help, we can address this issue at the grassroots level. Thus, we would like to call upon the international community, local partners, and all concerned bodies to stand in unison and show their solidarity with the affected communities and avert the looming disaster. We would like to bring this to the attention of all parties, strongly emphasize its urgency, and the scale of the possible crisis at stake.
We request all our partners and concerned parties to show their solidarity to the affected communities and provide all possible financial and technical support that is desperately needed to minimize the impact of the outbreak and its consequences.
Looking forward to your utmost attention and positive response offer to help.
Request for Emergency Support to fight locust invasion in Tigray, Ethiopia
Prof, thank you so much for your professionall analysis. But, YOU HAVE FAILED to exactly pinpoint what sort of measures should be taken by the Federal government (FG) so as to deescalate the tension.
It is so clear that the Tplf has a deep entrenched resentment against FG for the sole fact that the former lost its power under the federal level. Accordingly, the tension between the two is diametrically a power question. As to me, having taken into consideration the stubbornness of Tplf the tension can’t be solved without a federal intervention as per 359/2003. Indeed, the repercussion of this would be utterly so devastating. This is what Tplf bloody leaders are wishing and working hard for.
It is crystal clear that TPLF cadres and members do not really have even a fundamental grasp of federalism. The federal laws of the land which apparently they themselves drafted have assigned the election authority to rest with the federal government. Going against that for sheer bravado they held an illegitimate regional election. The election was, as expected, a farce, a sham, guaranteeing 80% of the seat to the ruling coalition even before the first ballot was ever cast. They say you cannot teach an old dog new tricks. Having been undemocratic for 30 years, claiming a winning record of 100% of contested seats- a statistical impossibility, having stolen the 1997 election, it would indeed be a challenge for TPLF cadres and its members to learn the abc of democracy and elected government. Then they claimed Tigray is a defacto independent state. If so, do not cry wolf, when the logical extension of your opportunistic political adventurism leads to your ejection from your federal seats. Since you have declared you do not want a seat in the federal government, the federal government has no option but reach out the people in Tigray who are the brothers and sisters of all Ethiopians at the workday and kebele levels.
One thing that we should understand is that Ethiopia is on the verge of collapse not because of TPLF.Prosperity party lead by pastor Abiy Ahmed may bring Ethiopia towards disintegration unless corrective action is taken that includes establishing transitional government like that of Sudan.i say this because i believe that Abiy Ahmed is not capable of leading ethiopians & insuring safety & well being.
His friendship with dictator Isayas Afewerki will not serve Ethiopian interest at any cost.
Thank you for you opinion Belete T. But i can not agree with you. You say Ethiopia is on the verge of collapse not because of TPLF, but because of Abiy Ahmed? TPLF separates Tigrey from the rest of Ethiopia and the Federal Government is the culprit? Gebremichael lets rockets rain on the capital of Erytrea and it‘s ok? And that after Abiy Ahmed signed peace with Erytrea after so many years?! What about the locust plage in Tigrey? Is ist a secondary issue there? Instead of doing everything to get every possible support against the locust plage, the TPLF provoked a war! At least now should everyone know what comes first for the TPLF – their grip on power! A tragedy for the people of Tigrey! Hopefully they will draw their conclusions and prefer rather a Gebreethiopia than Gebremichael.
Both TPLF and PP are in contention , not about Ethiopia, but to outmaneuver each other to consolidate power. TPLF wants its officials to be acquitted from any charges and perhaps regain some federal offices. PP spearheaded by Prime Minister Abiy intends to rule for long as much as possible by getting rid of possible opponents. In this struggle the country is at a verge of disintegration. This article shows why there should be a political negotiation, because both sides can’t be called legitimate at the moment. Thence, I laud this article for its pragmatism.
It is quite clear that TPLF is very protective about constitutional federalism and the idea of regional self-rule. But that is only part of the story. For over two years now, it has been a very hostile political environment for TPLF and Tigray – exclusion of TPLF from the federal government, road closures, and the “peace” with Eritrea that seems intended to “by-pass” Tigray. It is fair to say that the people of Tigray have shown patience and grace hoping things would improve over time, to no avail so far. Whether Abiy would re-consider his antagonism towards TPLF and try to salvage the political situation from further deterioration is something within his possibilities.
Wrong, wrong and wrong again.
Foreign affairs is exclusively mandated to the federal govt, not regional. This isnt me saying it, this is what Abay Tsehaye said about the Metema issue, it doesn’t just cause it is Tigray.
Same goes with elections and the constitution. TPLF is not protective of the constitution, it is the chief trespasser.
Peace is indivisible, it is supposed to be of equal meaning to all. But peace that excludes the region at the border that was part of the dispute, then that makes it a defective peace – a travesty.
The equal meaning to all is the end of the war for all parties. But not every peace treaty is equal win for every party. In the case of the treaty between Ethiopia and Erytrea there was already an independent international judgment, which served as the basis of the treaty. Tigray lost a disputed border town, but Ethiopia as a hole went forward. Was another and better settlement for Tigray possible? For all those years?! Certainly not.
It is time to found Soviets without a ‘Long March’, baby!!! I have been telling you ‘political power comes out of the barrel of the gun only’. Did I lie? If you dare call me a liar I will be right on the phone with Chairman Mao, am sorry Chairman Debre, to tell him about that. Then he will come for you with his lieutenants lurking around you. His militia soldiers are the most experienced and trained fighting men with no peers, even the US marines, Seals or Green Berets. My main man Chairman Debre will declare the founding of the Soviet Peoples Republic of Tigray in a week’s time.
I’m going there and apply for a dual citizenship. Are you coming with me but there is one major requirement. You have to prove that you are a bigot. Then I will smooth out the paperwork for you. You see, Debre and I go a long way back in the days. We’re hommies twisted like snakes.
TPLF always creates problems. TPLF can not survive in peace. For TPLF to survive TPLF needs to constantly create conflicts , that’s the REVOLUTIONARY democracy . TPLF got to create dramas to keep it’s “revolutionary” identity. Read the Dedebit manifesto, it clearly states TPLF needs to be rebellious constantly .
“Although the constitution should be the framework for resolving the tensions, given the precarious political situation the country is in, it would be unwise and dangerous to insist on strict adherence, such as arguing that HoF should order federal intervention.”
So we are now alluding to bending the constitutional framework to accommodate the presumably unconstitutional acts of the TPLF? Why bother then to have a constitution to begin with if we are to implement it selectively when a perceived strong opponent can get away breaking the covenant? It is a frivolous argument.
We have to come to terms with the various gaps and intentional twists in the supreme law and work for the grand bargain to resolve the issues holistically. You can’t deny the Wolaytas what is clearly promulgated in law of the land and break the same law to accommodate those who are so used to habitually breaking it.
Excellent argument, thank you!
Dear thankyou for your professional and deep sighted idea. I proud to have this balanced personality. No one is enemy of the other. Thg he only gap that we have is poor communication
So to develop democracy talking around t table is t solution.
A very good, thoughtful article and much better than the run-of-the-mill articles posted on this site.
But when the author says “Tigray should be prepared to work with the federal government, despite its divergent constitutional interpretation..”, though a very thoughtful sentiment, gives the impression that TPLF’s actions are driven by their slightly different interpretation of the constitution. I am sure that the author is very well aware that TPLF’s intention, given their history, is to discredit and delegitimize the current administration, in every possible scenario, and it is not from their devotion to the rule of law or the constitution, that they are causing disharmony.
And secondly, while I also agree with the sentiment to deescalate the current situation, we would have been better served if the author, given his expertise, could specify what actions the government could take, other than refraining from what they intend to do, as I fear HOF and the government are stuck between a rock and hard place. Should they bow down to TPLF’s pressure and delegitimize themselves and ignore their duties for the upcoming national election, which should also be re-held in Tigray (because not all parties were involved in the Tigray elections, there were no real debates, the independent national election board was not involved, and it was basically run by TPLF for TPLF)?