Viewpoint

Ethiopian regions cannot hold elections without federal approval

Tigray ruling party’s plan to proceed with polls before the rest of the country may face legal obstacles

On 31 March, the electoral board announced that it could not keep to the August 2020 election schedule. On 4 May, Tigray ruling party’s politburo said it would hold polls regardless.

Tigray People’s Liberation Front (TPLF), depicting itself as the true guardian of the constitution, appears to want to show that the ruling Prosperity Party (PP) is violating the constitution to stay in power using the global pandemic as a pretext. For example, Fortune quoted TPLF MP Adhana Haile, as saying the postponement was premature because the virus had not taken hold in Ethiopia.

These events occurred after 29 April when the government had a discussion with contending political parties under the theme ‘COVID-19, deferring election and legal solutions’ and proposed four solutions. On 30 April, following the electoral board recommendation, parliament directed the agenda to the Legal, Justice and Administration Affairs Standing Committee for further scrutiny.

Not all parties have welcomed the postponement. Some agreed it was necessary, but others also accused the government of using the pandemic as a pretext to remain in power. Above all, the incident axiomatically exhibited the friction between PP and some opposition parties, primarily TPLF.

The 31 March electoral board announcement did indeed raises constitutional questions, as Articles 54(1) and 58(3) of the constitution limit the term of office of the members of the House of Peoples’ Representatives to five years; and also require ‘‘elections for a new House [to] be concluded one month prior to the expiry of the House’s term’’.  Hence, since the house agreed to postpone the election, there seems to be a legitimacy question hanging over all incumbent governments and officials in the country.

So, could one of the federating units hold a legitimate regionwide general election without the electoral board’s consent?

Proclamation No. 1162/2019, the Ethiopian Electoral, Political Parties Registration and Election’s Code of Conduct Proclamation, defines general elections as ‘‘elections of members of the House of Peoples’ Representatives and Regional State Councils held every five years in accordance with relevant laws’’. It also provides that ‘‘[g]eneral elections shall be conducted throughout the country simultaneously’’.

Article 51(15) and (55)(2)(d) of the federal constitution specify that parliament, “is empowered to enact laws (that) give practical effect to political rights provided for in this constitution, all necessary laws governing political parties and electoral laws and procedures”. The constitution, under Article 52(1), also gives all authority to the states that is not expressly given to the center alone, or concurrently to the center and regions.

Because the constitution gives the federal government power to make laws governing political parties and electoral laws as well as procedures, it logically follows that the regional states would have to defer to the federal government in this domain. Consonant with this, Articles 4(2) and 8(4) of Proclamation No. 1162/2019 provide that if any regional election laws contradict the federal election law, they would have no legal effect.

On the other hand, Article 102(1) of the constitution provides ‘‘[t]here shall be established a National Election Board independent of any influence, to conduct in an impartial manner free and fair election in Federal and State constituencies’’. In tandem with this constitutional provision, Proclamation No. 1133/2019 established a national board ‘‘having its own legal personality as an autonomous organ independent from any influence’’.

Both the constitutional provision and the establishment proclamation make it clear that the mandate of the board to conduct elections applies to both federal and state constituencies. In fact, the establishment proclamation explicitly empowers the board to ‘‘execute impartially any election and referendum conducted in accordance with the Constitution and with election law’’. This may be why none of the regional constitutions have provisions to establish state election boards.

Therefore, it seems clear that its authors agreed on having a single national electoral board to organize both federal and regional elections; and giving the power to enacting laws governing political parties and electoral laws and procedures to the federal government.

Given this guidance from the constitution and the electoral law, the question of whether the regions can hold a legitimate general election—and the incumbent governments’ legitimacy after the expiry of the term of office—depends on the reason behind the decisions of the electoral board and the lower house of parliament to defer the election.

Normally, there are two possible reasons for not holding elections within the period scheduled by the constitution: first, if the country is in an extraordinary situation, such as the current health emergency; the second would be if the government was unwilling to conduct the election, possibly due to political motivations.

When the latter, unwillingness, is the case, the incumbent government would be automatically illegitimate, and states would, at least theoretically, be able to do as they see fit. There is no reason why a region could not hold an election in compliance with all constitutional provisions and other laws governing political parties and electoral procedures.

The issue is different when a de jure state of emergency is declared fulfilling all legal requirements, the first scenario. In such a case, it would be absurd to argue that the government is illegitimate.  The existential threat to the state should be taken as a legitimate ground to postpone the election—assuming that the suspension is necessary to fight the danger. In a case such as the coronavirus, the incumbent government could justifiably stay in power until the danger has passed.

Consequently, in this scenario, regions cannot hold a legitimate general election without approval of the electoral board and the house. If any of the regional states wants to conduct a regional general election, the possible approach could be Article 7(2) of Proclamation No. 1162/2019. This provision does give the electoral board some flexibility, so that if the board were to deem it necessary, and if the parliament approved, polls could be held.

The next question is, how long could an interim government keep its legitimacy? Obviously, it should be until the danger is over, and one of the hardest political questions will be how to decide when the virus is sufficiently played out that it is safe to hold elections and return to normal. But regarding the specific period in which a vote must be held once the emergency is over, the constitution is ambivalent.

However, it may be possible to use Article 60(3) of constitution as a guide, which sets a time limit in case of dissolution of the lower house. This article requires a new election within six months after dissolution. So, it seems that the framers of the constitution thought six months would be enough to prepare and hold elections. Therefore, it would seem to have been their intent that an election should be held within six months after the danger is contained.

In the meantime, all concerned institutions must work shoulder-to-shoulder to preserve the state rather than for short-term political gain. Everyone, including the board, should buckle down to rectify past mistakes and weaknesses, so as to ensure that elections, when they eventually come, are a fair expression of the peoples’ will.

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This is the author’s viewpoint. However, Ethiopia Insight will correct clear factual errors.

Editors: Peter Heinlein, William Davison

Main photo: Prime Minister Abiy Ahmed with Tigray’s leader Debretsion Gebremichael; 11 June 2019; Aksum, Tigray; PMO

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Published under Creative Commons Attribution-NonCommercial 4.0 International licence. Cite Ethiopia Insight and link to this page if republished. 

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About the author

Markos Debebe

Markos is a former lecturer of law at Jimma University School of Law. Currently he is a researcher of democracy and the rule of law at the Policy Studies Institute. He can be reached at markoslawd@gmail.com

6 Comments

  • This measures seems tailored only for particular case or region ,at best, or another potential power grab and manipulation of system by the ruling party, at worst .This is constitutional mess one couldn’t have anticipated easily. On the other, the mean-spirited TPLF gangs are hell-bent to undermine the new regime in every step on the way with minor and obscure technicalities. This is after 28 years of breaking or flaunting every rule and and political norms by themselves.. They should expect zero empathy and cooperation from public or group in the upcoming confrontation unlike previous ones. People have enough of it.

    • I am sorry Awale, but you sound like an ex-TPLF yourself. Loren Weisman once said: “Playing the blame game is stupid and childish. It takes you somewhere that is not going to get you anywhere.” When the table was turned not very long ago the TPLF gang used to diminish your opposition in identical lingo saying that you were “hell-bent” to sabotage them (the government).” So what’s new big man? As Missy Elliot would say: “Everybody is doing the same old thing.” The good news is that when one door closes, another one opens. “Your downfall is a preparation for your up-rise,” argues Israelmore Ayivor, the author of “Daily thoughts for Positive Living” book. “If you don’t know this secret, you will remain on the floor, blaming your legs instead of your head!”

      • Mimitaye

        Your accusation of being TPLF lackey or an associate is absurd . It has little or no merit as far as in this context and missive are concerned. On the contrary, FYI, I criticized them many occasions through varied media plaforms in the decade or so. All I was trying to be here was fair and balanced. To paraphrase Voltaire, I disapprove of what you believe but I defend to the your right to the death to say it. And applies to the TPLF gangs as well. This is unprecedented constitutional crisus and the only way out is comprise and level-headedness. The legitimacy of the regime, electoral board or parlement is in murky territory. Insisting otherwise at point is abuse of, constitutionally speaking , after current expiry date. Insisting othereise at that point is uncharted territory. Likewise, the legitimacy of purported elections carried out of sny region without electoral board and federally mandated procedures is also dubious.

        • Mimitaye

          Your accusation of being TPLF lackey or an associate is absurd . It has little or no merit as far as in this context and missive are concerned. On the contrary, FYI, I criticized them many occasions through varied media plaforms in the decade or so. All I was trying to be here was fair and balanced. To paraphrase Voltaire, ‘I disapprove of what you believe but I will
          defend your right to the death to say it’. And that applies to the TPLF gangs as well. This is unprecedented crisis, constitutionally speaking, and the only way out is compromise and level-headedness. The legitimacy of the regime, electoral board or parlement is in murky territory beyond expiry date. Insisting otherwise at that point is abuse of power, constitutionally speaking , after current expiry date. Insisting othereise at that point is uncharted territory. Likewise, the legitimacy of purported elections carried out of any region without electoral board and federally mandated procedures and cooperation is also dubious

          • Okay. Got you Awale. Just want to be sure you remain true to your original self. Keep hope alive!

    • Regardless of your obsessive rant aimed at TPLF, Jawar and his political group also believe that the constitutional issue is also a political issue that requires discussion and consultation that includes the government and all the political parties in the country as a way forward.

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