The Council of Constitutional Inquiry’s reasoning and recommendations regarding delaying the election beyond the end of the governments’ terms were fallacious and self-serving

On 11 June, 2020, the House of Federation (“HOF”) fully adopted the recommendations made by the Council of Constitutional Inquiry (“CCI”) over the constitutional matters referred to it for interpretation by the Parliament. The CCI released its recommendations to the House of Federation (HOF) regarding the term limits of the House of Peoples’ Representative (“the Parliament”) and the Government.

This was prompted by the cancellation of the 6th National and Regional Elections due to the challenges caused by COVID-19.

The CCI’s highly anticipated recommendations, however, turned out to be a major let down. Although some of these recommendations were not unexpected, the egregious flaws in the CCI reasons are disappointing to say the least. The CCI provided superficial analysis and fallacious reasoning and failed to meaningfully grapple with the serious constitutional issues presented to it.

The Constitution states that eight of the 11 CCI members shall be eminent jurists. Yet these jurists wrote the reasons in a manner that brought into question their competence. The substantive defects in the reasons could simply be summarized as:  “the Constitution shall be interpreted this way because we said so!”

The CCI has missed an historic opportunity in Ethiopia’s constitutional experiment. This is particularly frustrating knowing that the Council called for amicus curie from experts in the field and held a hearing. The irony is that the Council never tried to make use of the constitutional jurisprudences provided from the submissions, which was supposed to add value to its reasoning, methodology, quality and persuasiveness of the decision. The CCI is supposed to produce precedent-setting and respectable reasons as its counterparts in other countries do. However, the CCI has proved that it merely is an instrument for conferring legitimacy on the incumbent Government and, hence, is an untrustworthy institution.

The CCI is led by the two top justices of the Federal Supreme Court. The decision should alarm anyone and calls for an action that the judiciary must be fundamentally reformed before the upcoming elections. It would be a wishful thinking to expect impartial and competent adjudication of election and political disputes from the judiciary.

The major flaws are:

  • The CCI stated the textual reading of Article 58(3) of the Constitution implies the contingency of the Parliament’s five-year term on whether an election is held at least a month before the expiry of the term. This is an absurd inference as the meaning of the text is plain and drafted in compulsory terms.
  • The CCI held that the purposive reading of Article 93 of the Constitution indirectly recognizes that the incumbent Government’s term limit may exceed five years. The CCI provided no reasons why this is so. Rather, the CCI made the fallacy of circular reasoning by starting with the premise that it ended up repeating as a conclusion.
  • The CCI gives the Federal Ministry of Health (FMOH) a central role in determining when the countdown to the upcoming elections date will begin. The National Electoral Board of Ethiopia (NEBE) is a constitutionally mandated organ to decide such important election- related matters. It contravenes the spirit of the Constitution to reassign this power to the executive branch. The incumbent can stay in power as long as it says COVID-19 continues to be a public danger.
  • The CCI held that the mandate of the regional councils and executive bodies shall also be extended as that of the federal parliament and government because elections matters are federal issues. The CCI enmeshed the decision to postpone elections with the decision regarding the terms of the regional council and governments. The former is a federal matter, while the latter is undoubtedly a matter left to the regional constitution. Hence, this aspect of the decision encroached upon jurisdiction of regional governments.

Issues

The following were issues submitted to the CCI from the Parliament:

  1. In light of the State of Emergency Proclamation Enacted to Counter and Control COVID-19 and Mitigate its Impact, Proclamation No. 3/2020, what do Articles 54(1), 58(3) and 93 of the Constitution indicate regarding the duration of the terms of office of the parliaments and executive organ?
  • In light of the State of Emergency Proclamation Enacted to Counter and Control COVID-19 and Mitigate its Impact, Proclamation No. 3/2020, what do Articles 54(1), 58(3) and 93 of the Constitution imply regarding the timeline for holding the elections?
  • The CCI did not reframe the issues.

Commentary

The CCI has inherent power to reframe the issues before it where appropriate. This does not mean the CCI has the power to reframe any issues as it deems fit. But it is not uncommon for a jurist to reframe the issues being argued by parties in assessing the evidence and arguments, rendering determination on the central issues in the proceeding. Accordingly, the fundamental issues that were before the CCI can be reframed as follows:

When a state of emergency is declared under Article 93 of the Constitution to control epidemic that endangers public health, and elections cannot be held as per Article 54(1) and 58(3) of the Constitution due to measures imposed to control the epidemic, does Article 93 allow extension of the terms of office of parliament and government?

  • If Article 93 does not address this issue clearly, should this matter be addressed through constitutional interpretation or amendment?

If Article 93 allows the extension of the terms of office of the parliament and the executive, what power should the government exercise during its extended mandate period?

If Article 93 allows the extension of parliamentary and executive term limit, when should this extension expire?

ISSUE I: Whether Article 93 allows the extension of the incumbent Parliament and Government’s term of office beyond five years?

Textual Interpretation

  1. The CCI held that the textual interpretation of Articles 54(1), 58(3) and 93 recognizes the extension of the parliament’s and executive term limits during the state of emergency. The CCI however indicated that it gives a little weight to this interpretation[1] because the CCI held that the same conclusion can be reached by applying purposive/structural interpretation.[2]
  2. The CCI highlighted that elections are the cornerstone of a democratic governance. It is an expression of sovereignty of nations, nationalities and peoples (Articles 8(1) & 38).[3] The textual reading of Articles 54(1) and 58(3) conveys the fundamental point that the parliament must be consisted of elected officials. This election must be held every five years in free, fair and open manner, and with a secret ballot.[4]
  3. The CCI held that Articles 54(1) and 58(3) are complementary provisions. Article 54(1) provides the substantive and periodicity requirements for the election. Article 58(3) provides details for the issues canvassed under Article 54(1). It essentially states that the election process must be finalized one month prior to the expiry of the Parliament’s term. However, the CCI found that the applicability of these provisions during the state of emergency declared pursuant to Article 93 is not clear. Hence, the CCI held that this necessitated constitutional interpretation.

Commentary

The silence of the Constitution regarding the interplay of Article 93 with Articles 54(1) and 58(3) does not necessarily call for interpretation. This issue was a significant constitutional gap that has serious political ramifications. The CCI does not have the mandate to confer political power to the parliament and government under the guise of interpretation. This gap triggers the process of constitutional amendment, in which the public, political parties and other stakeholders must participate as per Article 104. This decision is ultimately political and should be addressed through constitutional amendment.

The submissions from the International Oromo Lawyers Association, Berihun Adugna, and to some extent, Yared Legesse, argued that the Parliament and executive’s term limit is a political question requiring constitutional amendment, not interpretation. Yared argued that it is impractical to amend the Constitution before September 2020, hence, interpretation is the best option in the circumstances. His fear is the protracted process of amendment may result in a power vacuum. However, this overlooks the government’s responsibility to engage in political negotiations with the regions to finalize the process in time. The fact that it took nine months to amend the constitution’s provision to extend the time to conduct census must not exonerate the government to undertake painstaking negotiation with the regions to amend the constitution in time.

The CCI’s total disregard of these submissions is regrettable. The CCI neither acknowledged these submissions nor provided reasons for choosing the interpretation route. Hence, this choice was merely arbitrary. The CCI should have explained the circumstances that require amendment or interpretation. The CCI failed to make that delineation. The CCI should have seized this opportunity to provide guidance on how constitutional silence should be addressed.

  1. The CCI held that Article 58(3) of the Constitution indicates that Parliament’s term will only expire one month after the conclusion of the election and power transfer. The CCI imply that the Parliament’s term is contingent on whether an election is held. Therefore, according to the CCI, Article 58(3) cannot be construed as a prescription that parliament shall have a five-year term. Rather, the provision prescribes that the parliament’s term follows an election that could even take place after five years period.[5]

Commentary

The CCI’s interpretation of Article 58(3) cannot get more absurd. The effect of this approach is that any incumbent can extend its mandate by extending election time. The CCI didn’t even attach this ludicrous interpretation to be limited to circumstances that render holding free and fair election impossible such as a state of emergency caused by war or pandemic/epidemic. This bold conclusion is not perceptible from the textual reading of Article 58(3).

The CCI’s reading of Article 58(3) is a serious mistake that delegitimizes the experimentation in constitutionalism. The CCI gave the current administration a blanket mandate which is to be found nowhere in the Constitution.

Article 58(3) reads: “The House of People’s Representatives shall be elected for a term of five years. Elections for a new House shall be concluded one month prior to the expiry of the House’s term.”

The first paragraph of Article 58(3) unequivocally sets the parliament’s term as five years. The subsequent paragraph merely provides when the process of convening the successor parliament be completed. It highlights this process must be completed in those five years terms, not after the expiry of that term. The paragraphs are compulsory. They left no discretion for non-compliance under any circumstances unless such is evident from other provisions of the Constitution. That is why the CCI’s reading of discretion in these paragraphs is so wayward that it amounts to dereliction of duty. More so, the CCI’s claim that such reading is justified from the text of Article 58(3), without the need to look other provisions of the Constitution, is arbitrary.

  1. The CCI then determined that the stipulation of five-year term limit for the government prescribed in Articles 54(1) and 58(3) is only applicable for normal times. Where the circumstances do not allow to hold election, the government’s term can be extended. [6]

Commentary  

The CCI relied on its odd reading of Article 58(3) to conclude that the five years term of office for the government is only applicable under normal circumstances. Surprisingly, the CCI used textual interpretation to arrive at this conclusion. This leaves one to wonder if the CCI has even understood what a textual reading of constitutional provisions means. It is noted here that if the CCI had indisputably admitted the issue derives from constitutional silence then it would be practically impossible to engage in textual interpretations. This is because construing constitutional silences would at least require to go beyond the whole document of the constitution and relate the facts with some principle than a mere provision. Besides, if the CCI proceeds with this form of construction on the texts of the constitution, it has failed to explain how such would be any different from the purposive/structural interpretation.

A textual reading requires one to consider the ordinary meanings of words. Where the plain meaning of the provision is clear, that meaning cannot be ignored without justification. There is no ambiguity in Article 54(1) nor 58(3). The plain meaning of the provisions does not qualify their application to normal circumstances. The CCI’s conclusion to the contrary using textual reading is an egregious misapplication of textualism.

The CCI basically rewrote Article 54(1) and 58(3), respectively, as follows:

Members of the House of Peoples’ Representatives shall be elected by the people, under normal circumstances, for a term of five years, on the basis of universal suffrage and by direct, free and fair elections held by secret ballot. [Emphasis added]

The House of People’s Representatives shall be elected for a term of five years unless its mandate is extended in exceptional circumstances. Elections for a new House shall be concluded one month prior to the expiry of the House’s term. [Emphasis added]

The CCI exceeded its mandate of interpretation by engaging in effectively rewriting or amending the constitutional provisions.

  1. The CCI noted parliament’s decision regarding the impossibility of holding election under the circumstances. A state of emergency declared to control COVID-19 pursuant to Article 93 has limited democratic rights that relate to election.[7] Therefore, the CCI held that until the state of emergency is lifted, the election must be postponed, and the incumbent government’s term must be extended. [8]

Commentary

The CCI’s conclusion that the election must be postponed is bizarre. The postponement of the election was not an issue before the CCI. The parliament has already made that decision. The constitutionality of this decision is debatable, but the decision enjoys the presumption of constitutionality until declared otherwise. Therefore, the CCI’s conclusion on this issue was unwarranted.

The real issue was whether Article 93 allows the extension of the parliament’s and government’s term in the circumstances before the CCI. The CCI failed to clearly articulate its answer to this question.

Article 93 allows limiting democratic rights, including the right to vote and be elected. The limitation of these rights directly affects the meaningful exercise of voting rights. In turn, this suspends the election calendar and term limits stated under Articles 54(1) and 58(3). Therefore, until the state of emergency is lifted, the election must be postponed, and the incumbent government’s term shall be extended.

The major flaw in this overly simplistic and superficial analysis from the CCI is how the suspension of Article 54(1) and 58(3) by the state of emergency imply extending the term limit for the incumbent parliament and government. The constitution has the options of forming a caretaker government or making constitutional amendments that could bring other alternative forms of government. The fact that election cannot be held at end of the five-year term does not necessarily mean the incumbent must continue governing. It could also mean filling the power gap with other viable alternatives. The CCI confused the continuity of the constitutional order with that of the incumbent government. This confusion disoriented the CCI to overlook the alternatives to ensure the continuity of constitutional order.

The CCI’s approach to the textual reading of the provisions to conclude that Article 93 allows the extension of the parliament’s and government’s term limit is illogical and wrong. The text can only go as far as telling us the election calendar can be suspended during the state of emergency where democratic rights that impact voting rights are restricted. The text is silent on what would be the effect of postponing the election on the term limit of the incumbent. Therefore, the CCI’s application of textual interpretation to this novel issue is inadequate.

In fact, the CCI has realized this flaw later in its reasons where at para. 48 it contradicted itself by stating the literal reading of Article 54(1) and 58(3) does not leave room for extending the government’s term beyond five years. It is shocking to see that jurists tasked with the mandate of making constitutional interpretation did not even make internally coherent decisions.

Purposive/structural interpretation 

  1. Further, the CCI (mis)applied purposive/structural interpretation to determine the interplay of Article 93 with that of Articles 54(1) and 53(8). The CCI held that this principle of constitutional interpretation is best to resolve the issue at hand. [9]

Commentary

The CCI did not explain why purposive/structural principle of constitutional interpretation is better than the other principles of constitutional interpretation. Neither did the CCI mention which principles it considered and rejected as non-applicable to the matter.

  1. The CCI then reviewed the central place elections have in the constitution, and its importance in ensuring the continuity of government.[10] The CCI stated that the main objective of Article 58(3) is to ensure the continuity of government by avoiding power vacuum, thereby providing protection against humanitarian, political, economic and social crisis. These were plain descriptions of the constitutional provisions pertaining to election and voting rights. Unfortunately, the CCI did not analyze these provisions in resolving the issue of whether Article 93 could be construed to confer continuity of mandate on the incumbent parliament and government.
  2. After a long restatement of the relevant constitutional provisions, the CCI stated its findings regarding how the state of emergency declared pursuant to Article 93 suspends the operation of Article 54(1) and 58(3). The CCI concluded that the election must be postponed as it cannot be held due to the state of emergency. [11]

Commentary

As indicated above, the CCI’s determination on the postponement of the election is unwarranted. The CCI’s reasons from paragraphs 31 through 42 were simply patchwork of statements of the obvious. Nothing of relevance to the constitutional jurisprudence comes of these paragraphs. It does not look like a juridical reasoning written to address a constitutional issue.

  1. The CCI then turned its attention to describing the various term limits for the executive under the constitution.

Commentary

This detour was made without addressing whether the suspension of Article 54(1) and 58(3) due to the state of emergency has the effect of extending the term limit of the parliament. The CCI reasoning did not stay on the central issue and made a detour by overlooking the major issue it was supposed to address.

  1. The CCI stated that there are three term limits in the constitution. These are:
  • Five-yea term—this is regular term of office for the government as stated under Articles 54(1), 58(3), 67(2) and 72(3).
  • Less than five-year term—this is the term of office for the government who lost a vote of confidence or citizens recall their representatives resulting in the loss of majority for the government as per Articles 12(3), 54(7) and 60. In these circumstances, the Prime Minister can dissolve the parliament with its consent prior to the expiry of the parliament’s term.
  • Longer than five-year term—Article 93 indirectly recognizes the government’s term may extend beyond five years where a state of emergency suspends holding election as per Article 54(1) and 58(3).

Commentary

 The government’s five years and shorter terms are clearly recognized in the Constitution. However, the CCI’s finding that the Constitution also indirectly recognizes longer than a five-year term of office for government by virtue of Article 93 relates to the central issue it was tasked to resolve. The core issue before the CCI was whether Article 93 confers on the incumbent parliament and the executive a mandate beyond their maximum five-year term. The CCI stated that such extension is indirectly recognized by Article 93. The CCI characterized this significant finding as something which is simply evident from the reading of Article 93, just like how evident the five years and shorter-term limits are.

The CCI subsequently relied on this premise to conclude that the state of emergency declared to control COVID-19 has extended the incumbent’s government’s term limit beyond five years. The CCI stated that this conclusion resulted from the purposive reading of the constitution, in conjunction with the Constitution’s fundamental principles. The CCI reasoning is as fundamentally flawed as it is circular.

A circular reasoning fallacy occurs where the person begins with what he is trying to conclude. In essence, both the premise and the conclusion are the same. The classic example of this fallacy is the argument that the Bible is the word of God because God tell us, and it is in the Bible. Likewise, the CCI held that the declaration of state of emergency made pursuant to Article 93 extends the incumbent government’s term beyond five years because Article 93 indirectly recognizes that the government’s term can extend beyond five years. The CCI starts with the premise that it ended up repeating as a conclusion.

The main issue is how can Article 93 of the Constitution be said to have indirectly recognized government’s terms of office beyond five years. There is no answer to this central question.

The significant time, expectation and expertise that went into answering this question were simply sidelined. The CCI failed to grapple with the various sophisticated, well-articulated submissions on this central issue. In essence, the CCI gave the simplest, irresponsible and fallacious answer that the incumbent government’s terms must be extended pursuant to Article 93 “because we said so!” This is a significant failure of duty.

ISSUE II: Scope of the incumbent government’s power during its extended mandate

  1. The CCI answered this question by quoting the broadly formulated objective of the Constitution stated in the preamble and says:

Strongly committed, in full and free exercise of our right to self-determination, to building a political community founded on the rule of law and capable of ensuring a lasting peace, guaranteeing a democratic order, and advancing our economic and social development

  1. On the basis of the above-quoted objective, the CCI concluded that the incumbent government shall have the power and responsibilities that it had been exercising to achieve this objective during its extended mandate. In other words, in its five-year term, the incumbent government shall have the power and responsibilities that it was bestowed upon by the Constitution.

Commentary

The CCI’s conclusion on this issue is defensible, but its reasoning is flimsy. First, the preamble is not binding and generally has limited interpretive role. Second, the quoted objective stated in the preamble is so broad that no prescriptive norm could perceptibly emerge from its textual meaning. For example, one could simply argue with similar logic that the said objective bestows the full constitutional power and responsibilities on a caretaker government established pursuant to Article 60(5). But Article 60(5) limited the powers of a caretaker government to merely running of day to day function of governance. The CCI’s reasoning therefore has absurd results that is inconsistent with Article 60(5).

Here it is worth noting that the reasonings sought on the basis of the principles stated in the preamble would only make sense had the justification made earlier by the CCI on the continuity of the incumbent were actually founded on constitutional jurisprudence advancing the continuity of the constitutional order itself. In other words, the principles referred to in the decision are in fact the goals of the constitution. Instead, they are used to explain the powers of emergency government whose authority is extended without undergoing a democratic process. Besides, if the CCI dare to extract the meanings of each of the elements and values packed under the constitutional principle it sought in the Preamble, it will have reached a different conclusion than it did.

The CCI was not expected to reinvent the wheel in its reasoning. The submissions from Adem Kassie Abebe et al articulated a reasonable explanation for conferring full constitutional power on the incumbent during its extended mandate as follows:[12]

… when the incumbent has not been defeated in parliament, the role of the government should not be reduced to routine administrative decisions…. This view has strong support especially when the interim period is created as a result of emergencies, during which the government should be allowed to carry on with the normal business of government or even with exceptional powers… this logic of a caretaker government with limited powers is inconsistent with the fact that the logic of emergencies, which necessitates a government with full, even exceptional powers during and in the immediate aftermath of the emergency.

The CCI could have simply adopted the above reasoning to reach its conclusion about the scope of the incumbent’s power. Its failure to do so indicates the superficial analysis that permeated the CCI’s reasoning.

The CCI could have also relied on Article 93(4)(a) that grants “all necessary power” to the executive branch to maintain public security, law and order. The CCI could have interpreted this provision to determine the scope of the government’s power during emergencies.

The CCI also made a serious mistake at para. 53 of its decision by stating the incumbent government has the power to enact and interpret laws during its extended mandate. The CCI overlooked the power to enact laws belongs to the Parliament, and the executive branch only has delegated authority to enact subsidiary legislation or regulations. The CCI also overlooked the executive has no power to interpret laws which is constitutionally vested in the judiciary pursuant to Article 79(1).

ISSUE III: When shall the postponed elections be held? And who shall determine that?

  1. The CCI held that the Constitution is silent regarding the timeline in which elections postponed due to state of emergency must take place. Hence, the CCI held that this gap must be filled by constitutional interpretation.

Commentary

The CCI did not provide explanation why amendment could not have been a better alternative than rewriting the Constitution under the guise of interpretation. What the CCI did is amendment of the constitution masquerading as interpretation.

  1. The CCI explored the various factors that render holding the elections prior to controlling the transmission of COVID-19 pandemic impossible. These factors included the transmission rate of the pandemic, the financial burden and public health danger of voter’s registration and voting, disruption of the global supply chain of supplies and decreasing international support for the election. Under these circumstances, it is not possible to hold a free, fair, direct election in a secret ballot. Therefore, the election must be held after the pandemic transmission has been controlled.
  2. The important question is then who decides that COVID-19 has been controlled and it is conducive to organize elections. The determination regarding this is where the CCI miserably failed.

Who decides the pandemic has been controlled?

  1. The CCI held that the Federal Ministry of Health (FMOH) in consultation with the science community and public health institute has the power to declare that the COVID-19 has been controlled. This decision or recommendation shall consider the international and regional transmission of the virus, national vulnerabilities, and scientific evidence from the World Health Organization (WHO), Ethiopian Public Health Institute (EPHI) and scientific community. The CCI further stated that the FMOH shall submit its recommendation for approval by the Parliament who makes the final determination.

Commentary

The CCI’s recommendation is internally inconsistent as it suggests that the FMOH has the power to declare victory in the fight against COVID-19. On the other hand, the CCI limited the FMOH power only to make recommendation to the Parliament, who shall have the power to declare the victory against the pandemic. Nonetheless, the CCI recommendation gives the FMOH a central role in determining when to reset the time for holding the elections. The executive branch of the government is tasked to determine when to set the time for starting the countdown to the elections, which could remove it from office. This is one of the most troubling aspect of the CCI recommendations.

The National Electoral Board of Ethiopia (NEBE) made the recommendations to the Parliament to postpone the elections before the declaration of the state of emergency. The NEBE relied on its own independent assessment in recommending for the cancellation of the scheduled election. The NEBE consulted public health experts, FMOH and political parties in its assessment.[13] These factors have demonstrated that the NEBE had competent, independent, participatory and transparent process in place for making decisions regarding the elections calendar.

The NEBE is an institution established under the Constitution to oversee election-related matters. It is intended to be independent from the executive branch as it is directly accountable to the Parliament. Therefore, conferring the power to the FMOH to make an important determination affecting the elections timetable without an input from the NEBE amounts to usurping the Constitutional mandate of the NEBE to make such decision. By doing so, the CCI has failed to take adequate accounts of the dangers of leaving the executive unconstrained owing the forms of government being parliamentary system. It would have made sense to empower the supposedly independent regulatory body, the NEBE, to control the executive than simply leaving it for the executive make the decision of when to hold an election.

It is regrettable that the CCI’s recommendation has the danger of giving the incumbent government the incentive to unduly exaggerate the public health danger, by suppressing and misusing scientific evidence to extend its term.

Further, the CCI recommendation failed to clarify if the state of emergency must be lifted upon the declaration of victory over COVID-19. The CCI must have made it clear that the clock to start election preparation shall not be contingent upon the lifting of the state of emergency. The NEBE made the recommendations to postpone the elections prior to the declaration of the state of emergency. Likewise, the NEBE could decide the timing to start the countdown to the elections date irrespective of the incumbent government’s decision to lift the state of emergency.

How long after the declaration of victory against COVID-19?

  1. The CCI stated that the six months period that the Constitution stipulates for holding election after the dissolution of Parliament under Article 60(3) or when a coalition government breaks down is not applicable to the case at hand because the CCI stated that these provision deals with non-emergency situation. Therefore, the CCI held that the Constitution must be interpreted to fill this gap.

Commentary

The CCI’s reasoning is illogical. The CCI has already determined that the count shall start after the declaration of victory against COVID-19. This declaration is hence an announcement of resumption of normalcy in public life. Therefore, the six months period under Article 60(3) should have been held applicable to the current circumstances because victory on COVID-19 presumptively returns normalcy in public life.

The pandemic may leave the economy in tatters. The recovery period may pose significant financial challenges. However, the CCI should have underlined how important holding elections is. Financial constraints cannot justify extending the incumbent’s mandate. Particularly, considering the legitimacy of the incumbent government is seriously contested, and the serious trust issues the public and the opposition parties have against the incumbent, it is regrettable that the CCI recommended an unnecessarily longer mandate for the incumbent.

  1. The CCI assessed the two scenarios submitted by the NEBE regarding the timeline to hold the elections. The NEBE indicated that it will need 10 months to hold the elections with additional budget. The NEBE further indicated it will need 13 months to hold the election if required to comply with additional public health measures.
  2. The CCI held that the NEBE must continue the election preparation regarding matters unaffected by the COVID-19. With this consideration, the CCI held that after the pandemic has been controlled, the election must be held within nine-12 months.

Commentary

The CCI analysis falls short of recognizing the magnitude of the issues it was adjudicating on. The CCI did not make any attempt to address the concerns of the public and political parties about extending the incumbent’s mandate only as necessitated by the circumstances. Shortening the limit of the term of office of the incumbent government must have been given the utmost consideration.

The NEBE scenarios were mainly based on two major conditions, budget and compliance with public health measures. If the countdown is to start after the victory over COVID-19, there is no need for the NEBE to plan and implement measures to protect public health. Life would have returned to normal by that time. Budget cannot be an excuse to drag the election beyond what is absolutely necessary in the circumstances. What the CCI should have done was highlighting that budgetary considerations could not be justification for the incumbent Parliament and Government to delay elections. No room for such consideration exists under Articles 54(1) and 58(3). Going outside the six-month limit stipulated by the authors of the constitution is not justifiable. Therefore, the CCI must have approached the NEBE assessment critically against the Constitutional requirement of holding free and fair election timely.

Further, the CCI failed to carefully assess the preparation for elections that could be completed in the current circumstances. For example, registration of political parties, the preparation of various directives, and recruitment and training of temporary workers and observers can be accomplished virtually using technologies. The NEBE must not hibernate until victory against COVID-19 is declared. Only tasks which could not be completed virtually be left for completion after resumption of normalcy. Therefore, the CCI’s sanction of nine-12 months period after COVID-19 is controlled is both arbitrary and contrary to the six-month period stated in the constitution in situation where election is called outside the regular election period.

ISSUE IV: Whether the terms of the regional councils and governments be extended?

  1. The CCI claimed that the Parliament’s referral asked for determination regarding the fate of the regional State Councils and governments due to the postponement of the elections.

Commentary

The issues referred to the CCI did not clearly put this question. As such, the written submissions and hearing did not address this issue. The CCI may have reasonably reframed the questions and identified issue of the consequence of the postponement of the elections on term limits of the Regional Council and Governments. In this case, the CCI must have declined jurisdiction as the terms of the nine Regional State Councils and Governments are set out in their respective Regional Constitutions.

The regional constitutions provide parallel structure like the one tasked with the interpretation of the federal Constitution. That structure shall have the first instance and final decision regarding the interpretation of the regions’ constitutions. The House of Federation may consider such interpretation if the constitutionality of that decision against the federal Constitution is challenged. Otherwise, the CCI has no mandate whatsoever to interpret the regional constitutions.

  1. The CCI stated that the NEBE reported both the federal and regional elections cannot take place as scheduled due to the state of emergency. The CCI noted that the Parliament and the executive branch have the power to enact election laws and enforce these laws. Therefore, the CCI concluded the regional elections shall also be postponed.

Commentary

The CCI determination that the regional elections shall also be postponed may not be problematic. Nonetheless, the CCI was not clearly called to determine whether the regional elections should be postponed or not. This was given, and uncontested issue that was determined by the cancellation of the elections by the Parliament. The constitutionality of the Parliament’s decision to postpone the regional elections is debatable. The decision of the Tigray State Council to proceed with the regional election contrary to the Parliament’s decision raises this novel and complex constitutional dispute. Therefore, it will be unreasonable for the CCI to make such determination that has serious implication on the powers of the regional governments without giving them the opportunity to present their cases.

  1. The CCI did not stop at endorsing the validity of the Parliament’s decision to postpone regional elections. It went further to conclude that the postponement of the regional election will also have the same Constitutional ramifications in extending the lives of the Regional Councils and Governments.

Commentary

This is another troubling aspect of the decision of the CCI. It is also an egregious disregard to the pillars of the Constitution, which is federalism. The term limits of regional councils and governments are matters that must be left to the regional constitutional process.

Each region must trigger its constitutional process to interpret or amend, if need be, to determine the implication of the postponing of the regional election on the terms of its legislature and executive.

The CCI overstepped its jurisdiction, and effectively dissolved the federation, which the Constitution absolutely prohibits even during the state of emergency as per Article 93(4)(C). Article 1 that defines the State as a federation and article 39(1) and (2) cannot be altered even in emergency. Nothing is more telling than the CCI’s ignorance of this fundamental tenet of the Constitution under the guise of constitutional interpretation.

It is noteworthy to mention none of the regional councils or governments participated in the hearing. Nor did any provided written submissions. Further, the CCI did not even refer to a provision from any of the regional constitutions. Theoretically, it is possible that one of the nine regions may have incorporated a provision in its Constitution that specially addressed the issue. What would happen if that provision stands in contradiction with the CCI’s decision?

The CCI also ignored oral submissions at the hearing by Adem Kassie Abebe, who cautioned the CCI that this issue was a matter for the regions and NEBE.

Conclusion

  1. The aforementioned commentaries have shown how troubling the CCI reasons were. To summarize, the CCI relied on fallacious reasoning on crucial issues. The shallowness and superficiality of the analysis is shocking. The reasoning is absurd, fallacious, self-serving and deeply flawed that it amounts to the CCI basically saying that “the Constitution must be interpreted this way because I said so!” The CCI has rewritten the Constitution under the guise of interpretation. After some decades, when the dream of having independent judiciary, and truly democratic governance comes true, the CCI reasons will be a show case for constitutional law students in our law schools how unsophisticated and unconscious our judiciary and CCI were. In the meantime, this decision of the CCI will erode the little trust people have in the judicial review process the constitution put in place.
  2. The public, opposition parties, civil societies, and the international community must pressure Abiy’s administration to prevent collective descent into the abyss. What the CCI show us is the administration’s utter disregard for constitutionalism, and unabated lust for power. If the upcoming election is to be fair and free, the judiciary that will ultimately be arbiter of the rules of the game must be fundamentally overhauled.
  3. On last note, the legal professionals who shared their expertise with the CCI deserve accolade. Their able submissions deprived the CCI any excuse. They have tested Abiy’s administration promise of judiciary reform—and it has been found wanting.

[1] The CCI Recommendations and Reasons

[2] Ibid, para.30. The missed opportunity failing to articulate what these principles of interpretations are, and why they are pertinent and applicable to the Ethiopian constitutional jurisprudence.

[3] Ibid, para. 21

[4] Ibid, para. 24

[5] Ibid, para. 26

[6] Ibid, para. 27

[7] Although it is important to notice that National Election Board of Ethiopia made a decision not to hold the election a week before the state of emergency was declared.

[8] Ibid, paras. 28-29

[9]  Ibid, para. 30

[10] Ibid, paras. 31-35

[11] Ibid, paras. 40-42

[12] Ibid, para. 66

[13] In fact, the ruling party opposed to the postponement of the election when the NEBE held consultative discussion with political parties. This consultation was made prior to the declaration of the state of emergency.

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About the author

Teklemichael Abebe Sahlemariam

Tekle is a barrister and solicitor based in Toronto. He practices immigration, family and criminal law. He regularly writes on Ethiopian politics and laws and appears on diaspora-based Ethiopian media as a political and legal analyst.

About the author

Endalkachew Geremew

Endalkachew taught at University of Gondar law school until 2015 and practiced law in Ethiopia. His research focuses on constitutional and public law, federalism and human rights. He is now a freelance researcher and consultant in Washington, DC.

4 Comments

  • This is a well written,balanced legal analysis. However, on its conclusion, this analysis is short to assert the importance of respecting the decision by the HoF with all its fallacies. In a fragile political atmosphere in Ethiopia, criticing the CCI decision, should not be seen as illegitmizing the institution. The message in short is; the Ethiopian legal institutions need thorough reforms.

  • The supremacy of the constitution and the rule of law for governance is all very gratifying. However the constitution does not operate in a vacuum – it works better in a stable political environment. Long before the onset of the virus, there was concern about the fate of “federalism” in Ethiopia and it has become one contention between Abiy and TPLF. And recently Oromo and Somali region political parties have also expressed their concern about the constitutional issue. The level of hostility between Abiy and TPLF after the formation of PP, with TPLF refusing to dissolve itself and merge into PP – this was out of the question for TPLF since it was against its principles of federalism. Then followed the public disparagements and defamation, blaming TPLF for everything, the mass media frenzy of vilification, the threat of economic sanctions and a hint of military retribution, topped by the so-called “peace” with Eritrea which, in all it absurdities, seems intended to exclude Tigray region – thus you have a condition of political disorder in Ethiopia in full view. In reality the constitutional dilemma is being debated in a state of political crisis, it may not be easy to separate the constitutional debate from the political discord under the current circumstances. This calls for a national political dialogue which requires goodwill and mutual respect.

  • Great piece. Yet, I am sure the text below could be unpacked further and the conclusion could be different:
    “… when the incumbent has not been defeated in parliament, the role of the government should not be reduced to routine administrative decisions…. This view has strong support especially when the interim period is created as a result of emergencies, during which the government should be allowed to carry on with the normal business of government or even with exceptional powers… this logic of a caretaker government with limited powers is inconsistent with the fact that the logic of emergencies, which necessitates a government with full, even exceptional powers during and in the immediate aftermath of the emergency.”

    Why empower a government ruling beyond its term on everything because of emergency? We can have a care-taker government with adequate power to deal with the emergency situation and, yet, not empowered to make new laws that concern other socio-economic and political issues. Are the two necessarily mutually contradictory?

  • Kudos to both Authors!!
    The article is well written, well referenced. The commentary part is really balanced and free of any political influence.
    It is professional responsibility to have independence and impartiality to interpret or comment on constitutional matter, I would say you are successful on that. Keep-up the good work.

    Thanks,

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