Prosperity Party’s aspiration to stay in office after the end of its term through a process of constitutional interpretation may well take the political crisis to a whole new level
The late 18th century American and French revolutions were key drivers of modern constitutional practice. They overturned imperial rule, asserted claims of national sovereignty, and set a shift from a world of empires to one of nation states. Subsequently, the formation of several nations ushered in a new constitutional moment.
Ethiopia, which had its first written constitution in 1931 under its own imperial rule, is now in distress due to the silence of its fourth constitution on a fundamental issue. The 1995 federal constitution lacks guidance on what is to be done when it is impossible to hold election before the end of a government’s five-year term, as is the case now due to the COVID-19 pandemic.
The direction chosen by government has become a matter of national debate. From four alternatives—dissolving parliament, extending the state of emergency, amending the constitution and requesting constitutional interpretation—amid request for dialog from the opposition, the Ethiopian lower house of parliament chose to request constitutional interpretation from the upper chamber, the House of Federation.
The fact of the matter is that even if constitutions are made through careful deliberation and have popular legitimacy, they will always contain gaps. As stated by Michael Foley in The Silence of Constitutions: Gaps, ‘Abeyances’ and Political Temperament in the Maintenance of Government, this might not mean an issue has been overlooked; sometimes it might be a strategy to promote ambiguity as way of resolving conflict.
Still, whatever caused the silence of the Ethiopian constitution on election postponement, the question remains as to how this gap should be filled.
According to Martin Loughlin, Professor of Public Law at the London School of Economics and Political Science, the silence of a constitution should be viewed through three concepts: a constitution as a framework for continuing political negotiation; a constitution as an order of values; and a constitution as facilitator of an evolving administrative order.
The idea of a constitution as a framework for continuing political negotiation considers the founding document as a bargain struck by political forces at a particular historical moment. In the bargaining process, agreement on all fundamental values is unlikely and the best the constitution can achieve is to establish a procedure through which differences can be negotiated. This is through the division of power between legislative, executive, and the judiciary. In this conception of the constitution, silences in the founding document can be devices of political management. The judiciary can then perform a role in strengthening this framework but, if silences are to be filled, it is a task for political negotiation and accommodation.
Order of values
Under the second conception of a constitution as an order of values, the document is seen as a system of higher-order law that governs all legitimate political activity. The constitution creates an inherently legal—rather than a political—framework. In this conception, there can be no political answer on matter which the constitution remains silent on; instead all are answered in the language of law. There may be interpretative ambiguities, but no gaps or silences. Therefore, the task of providing authoritative answers falls to the judiciary.
The third conceptualizes the constitution as an administrative order with the government as an institution that can stretch its powers to meet administrative necessity. As a result, many gaps and silences in constitutional frameworks are filled by extending the powers of the government. According to this conception, the silence of a constitution neither grants nor denies an executive prerogative power; instead it implicitly allows it to fill these silences.
Based on the above principles, it is worthwhile to identify the concept that best fit the Ethiopian constitution. Should we consider the 1995 text a bargain struck by political forces of that time; is the constitution an inherently legal rather than a political framework; or does the constitution grant the executive the power to fill constitutional gaps.
The 1995 constitution was drawn up by a constitutional commission and adopted by a Constituent Assembly of individuals selected from diverse political and social backgrounds. Under the watch of the then Transitional Government, the parties involved in the negotiation discussed and debated on the draft. Public hearings were also held in various regions and districts of the country. The preamble of the constitution is explicit that it is an agreement made by the “nations, nationalities and peoples” of Ethiopia in order to govern their shared political, social, and economic destiny.
This constitution was clearly a result of a bargain between representatives of competing interests.
On the other hand, there is no justification for us to consider the constitution as an essentially a legal framework, or as one intended to extend executive power to fill constitutional gaps. As per the second and third insertions, if the FDRE Constitution was meant to be a legal framework, it would have granted the power of interpreting the constitution to the judiciary, rather than the House of Federation, a political entity.
Again, we don’t find any provisions of the constitution that grant the power of interpreting and filling gaps of the constitution to the executive. It rather imposes a barrier on the executive, even in the matter of law-making: The Council of Ministers cannot enact regulations unless granted power to do so by the legislature.
Thus, we can infer that Ethiopia’s constitution was a result of political bargaining. Even if some facts might be overlooked by the constitutional commission and assembly, it might also have used silences as a political-management tool. Therefore, the way out of the current constitutional crisis we face as a nation should be seen in light of the origin of the constitution itself. As long as the constitution doesn’t clearly outsource the task of filling its silences, they should be filled through political negotiation and accommodation. Beyond this reasoning, the debate between competing parties may also enrich their relationship and help us to reconcile our distinct and shared Ethiopian values.
However, the way government is trying to avoid dialog and act unilaterally during the time we need pluralism the most looks problematic. Fortune, a weekly paper, revealed that the constitutional interpretation approach was chosen after getting blessing from the chairperson of the Council of Constitutional Inquiry (CCI), who is the President of the Supreme Court. In private, the executive already knows the outcome of the interpretation. Parliament has designated the articles to be interpreted. Thus, this controlled process very likely will produce an outcome favorable to the incumbent.
Top bureaucrats and advisors of the prime minister are also showering the print and digital media with articles advocating constitutional interpretation and denouncing other options. Some even suggested the continuity of the incumbent until election. In his recent filmed statement, the prime minister, beyond emphasizing the constitutionality of the procedure and independence of the Council of Constitutional Inquiry and HOF, unequivocally identified other alternatives as inappropriate.
This aspiration of Prosperity Party to stay in office after the end of its term through a process of constitutional interpretation may well take the political crisis to a whole new level. Instead, now is a time for political bargaining—just as when the federation was constituted decades ago.
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