Constitutions are supposed to bind citizens together, not drive them apart.A constitution is the basic or fundamental law of a state.
It performs several functions. It sets up a system of government—a parliamentary system, a presidential republic, or a monarchy. It then allocates power within the particular system—who legislates, who adjudicates, and who enforces.
Most current constitutions also include a system of rights that define the relationship between citizens and their government. Some constitutions even split sovereignty. That is what a federal system claims to do. Constituent parts of the federation are given competence over certain subject matters and the national government over others. Each is to be sovereign only over those issues and subject areas that have been allocated to it.
But whatever system of government constitutions set up and however differently they may distribute institutional power, whether vertically (federalism) or horizontally (separation of powers within the federal government), one common purpose animates most if not all constitutions.
They are meant to forge and develop a political community that enables members to see each other not as strangers engaged in existential struggle against one another, but as co-participants in a common project. Constitutions acknowledge the existence of, or constitute anew, a people. The normative underpinning of a well-designed and well-structured constitutional order is an integrative process of association.
The Ethiopian Constitution is unique in that both by its terms and the political culture that accompanied it during the last 30 or so years has managed to transform neighbors into strangers and a people into “peoples” who sometimes view one another as threats, or even mortal enemies.
Some have argued that it is not the Constitution but only the manner in which it was enforced (or not) that has led to our current predicament where citizens see fellow citizens who happen to be members of other ethnic or linguistic groups as aliens who need to be excised from the regional or local body politic. That view is incorrect.
The Constitution forms the basis on which subsequent narratives about strangers and members have taken hold and nurtured. Indeed, the Constitution turned a nation of hybridity into a federation, some might say confederation, of invented purity.
It is no accident that some activists, even prominent political actors, openly talk about the danger to the purity project of inter-ethnic marriage and of speaking languages other than one’s own within one’s community. The effect (and perhaps the intended purpose) of the Constitution has been to rewrite the long history of hybridity—through intermarriage, intercultural exchanges, and other processes of cooperative endeavors that defined Ethiopians—in the service of a pure community and radical difference.
And the political narrative that has accompanied the Constitution in the last three decades has been one of sharpening, making more salient, the differences among the various groups.
What I shall do in this brief reflective essay is show, through close examination of various provisions of the Constitution, how this basic document has led us where we find ourselves where a people has been fragmented into “peoples,” where these “peoples” do at times see one another as strangers and even mortal threats rather than as co-participants in a common project.
The Constitution seemed designed not as a document for an integrative process of association, but rather as a model of dissociation. To use a metaphor a famous U.S. Supreme Court Justice, Justice Robert Jackson, used in another context, the Constitution resembles a “suicide pact.”
The Preamble: A country or a united nations?
Constitutional preambles are meant to perform three functions. First, they identify who the sovereign is that adopts or grants the Constitution. Second, preambles often set out the circumstances that led to the adoption of the document. Third, they list the principles and purposes that the Constitution is meant to embody and advance.
Here my focus is on the first function on the list—the issue of who the ultimate sovereign is who has adopted the Constitution or on whose behalf the document was approved. Almost all national constitutions which have preambles begin with “We the People [of Country X]” or its variations such as “The People of [Country X]” as the ultimate sovereign which have ordained and adopted the constitution. The reference is to one “people” (singular) either as a descriptive or normative (aspirational) matter.
The Ethiopian Constitution is the only one which refers to “peoples,” in the plural, as the sovereign. It is not quite clear what the term “peoples” actually means. To be sure, the Constitution attempts to define it elsewhere (Article 39(5)), but that open-ended and somewhat incoherent definition is made even more incoherent when the same description is said to apply to “nations and nationalities” as well. Why three different terms are listed separately and successively (“Nations, Nationalities, and Peoples”) when they apparently mean the same thing is rather unclear. One cannot clarify the meaning of a problematic term by adding other vague and equally problematic terms to the list.
Even though the Ethiopian Constitution is alone among national constitutions in using the plural “peoples,” there is actually another basic law that uses the plural as part of its opening phrase. That document is the United Nations Charter. Its preamble begins with the phrase “We the Peoples”. The Charter is the constitution of the United Nations. And the term “peoples” here refers to countries. The United Nations Charter was establishing an organization (a forum) for independent countries not a federal system. It is no wonder that the various ethnic groups who have been designated as “peoples” in the Ethiopian constitutional scheme see themselves and act as if they were different countries.
The level of forces that some of the states have developed and at times display with great fanfare seem to show that these are mini-countries (at least they view themselves as such) that are preparing to defend themselves not from an external threat but from other mini-countries that are constituent parts of a federal system.
So, while almost all national constitutions are designed to transform strangers into co-participants in a common project, the Ethiopian Constitution turned a people into “peoples”; a nation into a United Nations.
Article 47 and “strangers” in their own country
Article 47 organizes the various states along ethnic lines (as “peoples”) and names most of the states after the dominant ethnic group of the region. The description of the state excludes, both textually and symbolically, those Ethiopians who happen to belong to a different ethnic or linguistic group but live within the state border, regardless of how long they have called the place home. Their presence and how they belong become ambiguous.
Indeed, ethno-nationalists have understood the linguistic exclusion of other groups as more substantive, entailing that members of other groups do not enjoy equal membership. They are mere residents and their continued presence is contingent on the goodwill of the majority ethnic groups which are viewed and view themselves as primary stakeholders. They are at best second-class citizens and at worst aliens who pose mortal threat to the identity of the ethnic group whose name the state carries.
Indeed, in some cases, not only is the state named after a particular ethnic or linguistic group (even when it is not the majority in the area) but the state is specifically referred to as the state of that people. Thus, for example, Harar is referred to as “the State of the Harari People.” One cannot be any clearer as to who the primary stakeholders are in that state. The clarity of who has ownership stake is accompanied by the ambiguity of the nature and manner in which non-Harari Ethiopians belong in Harar. These symbolic and textual exclusions have had enormous practical consequences.
Every competition for resources or other social goods is turned into a conflict over identity. It might be the case that identity will often be a factor in the distribution of resources and goods even if the country is not, as a constitutional matter, organized along ethnic lines. But identity will have a dominant (and a legally sanctioned) role if a country has organized itself along the lines that Ethiopia has. If conflicts are about interests, then negotiation and compromise are perhaps possible, but disputes about identities are often viewed as zero-sum games. In current Ethiopia, every dispute and every difference is viewed through the prism of identity.
Article 47 doesn’t only name existing states, but it also provides that “nations, nationalities and peoples” within existing states have the right to establish their own states “at any time”. The carving of the crystal continues. It is no wonder that many areas are now seeking to have a state of their own, named after them. The purity train marches on! We are in a ditch and we keep on digging to get out of it.
Article 39 and the affirmation of difference
While Article 47 divides the country along ethnic/linguistic lines, signaling that the country is composed of many nations (or is it peoples?), Article 39 takes it further. It recognizes the “unconditional” rights of these nations (peoples) to complete the process and establish themselves as full-fledged countries if they so wished.
The politics of difference established under Article 47 gets explicit emphasis under Article 39. “Every Nation, Nationality, and People has an unconditional right to self-determination, including secession,” says Article 39(1). And the right to break away from the country would be realized if “the demand” for secession is “supported by [a simple] majority” of the residents of the particular state.
Again, it is interesting to note that the Ethiopian Constitution is almost alone among national constitutions around the world in entrenching the right of secession.
There are only five other constitutions in force in the world which refer to a right of secession. And those countries were dealing with either a one-off issue or circumstances that are dissimilar to conditions that faced and still face Ethiopia. It was not India or Nigeria, countries which have somewhat similar issues as Ethiopia, which inspired the secession clause, for there is no such provision in their constitutions. Indeed, not only India and Nigeria not have a secession clause in their constitutions, but unlike the opening phrase of the Ethiopian Constitution, their preambles being with “We, the People” not “Peoples.”
There are several significant ways in which Article 39 manifests and entrenches the politics of difference.
First, it would be very difficult if not impossible to develop a durable and stable national identity with a fully ethnicized political structure overlaid with the right of secession. One can hardly constitute a “people”, as constitutions are meant to do, with “nations” who have the right to “demand” to exit for any reason at all.
The likelihood that the right to exit will be deployed by ethnonationalists to a never-ending strategic use of extortion—extorting power or resources—is very high. Article 39 by its very existence supplies the language of law to the extortionists. A “people” or a “nation” may find it useful to threaten either explicitly or implicitly to secede if it does not get its way on matters of resource or power allocation, even if its demands are unjustified.
As more nations and nationalities seek, nay “demand,” and attain legal recognition as states, the occasions for more, and more intensified, politics of difference increases. And one does not know when and how one could logically stop the proliferation of states given the rather ambiguous and confusing definition of “Nations, Nationalities, and Peoples”.
The number of groups or nations which have the right to demand for legal recognition as sovereign entities seems, at least theoretically, to be endless. Of course, there might be factors such as population base, how resources rich or poor the area is, and its geographic location that might influence the decision to demand recognition as a state. Even considering such factors, my hunch is that there are going to be many more candidates for recognition than we currently have in the pipeline.
Second, the very existence of the right of secession will always form the background within which the politics of difference (different nations with different outlooks and interests) will be practiced. Article 39 will intensify, not reduce, differences among the constituent parts of the federation.
Third, it is not inconceivable that Article 39 will give another incentive to ethnonationalists to engage in forcible displacement of residents from other ethnic or linguistic groups or to discourage such individuals from moving into the state. What better way to make certain that you have a majority vote in case you want to exercise the right of exit than to ensure that there is no significant population from other ethnic or linguistic groups within the particular state?
The threat to strident ethnonationalists and the champions of purity are ethnically or linguistically diverse communities. But the constitutional incentives seem to be organized in a way that will encourage precisely the opposite. Several of the people who were brutally murdered and those who were lucky enough to survive but were displaced following the murder of Hachalu Hundessa were told repeatedly that they did not belong there, even if they were born there and that is the only place they knew and called home.
As one Shashemene resident put it, “I was born and raised in Shashemene, it is the only place I know. But to the rioters I was suddenly an outsider who did not belong here.” This, of course, was not the first time when Ethiopians were murdered and displaced on the account that they did not belong. Strangers in their own country.
Let me make it clear that to say that constitutionalizing secession has corrosive effect on the national body politic (a position I hold) is not to say that as a matter of political morality there are never any circumstances that would justify exit from a union, even if it is not a constitutional right. That is a different issue altogether which I shall explore elsewhere.
Entrenching the politics of difference
Every constitution includes a process for its amendment. Most constitutions make amending the basic law rather difficult, as it should be. The United States Constitution, for example, requires that two-thirds of each house of the Congress (the House of Representatives and the Senate) must vote affirmatively before a proposed amendment shall be submitted for ratification. Under Article V, a proposed constitutional amendment then has to be ratified by three-fourths of the fifty states (38 states) before it becomes part of the constitution.
The current Ethiopian Constitution is even more stringent in its requirements in relations to certain articles of the Constitution. Thus, for example, Article 39, which gives to “[e]very Nation, Nationality and People in Ethiopia” the unconditional right to secede, cannot be amended unless each house of parliament (the House of Peoples’ Representatives and the House of the Federation) approves it by a two-thirds majority and it has the support of all of the States Councils. Interestingly, amending the amendment procedure itself also requires the concurrence of all States Councils.
While the American Constitution requires the concurrence of 38 of the 50 States, the Ethiopian Constitution requires unanimity of the states in relation to Chapter Three of the Constitution within which one finds Article 39. The odds of getting unanimity among states are very long and are getting even longer as more “peoples” (or is it “nations and nationalities”?!) invoke their right under Article 47 to establish their own states (named after them).
Recently, Sidama became the tenth state. Other groups are knocking on the door to start the process for establishing their own states. As recent events in Wolayta Zone illustrate, the knocks are getting louder. And given the rather ambiguous description of what a people or a nation is as a constitutional or even a sociological matter, many linguistic groups are likely to ask that they be recognized as a state—a never ending journey to the pure community.
The constitutional amendment process provided for in Article 105 essentially locks out the Ethiopian people as a whole from having any say on the question of whether a particular state (people) should secede from the federation. Apparently, the fate of the union is not, or ought not to be, viewed to be of any concern to the rest of the country.
Language and the durability of a political community
The minimum requirement for a political community is that members of the various groups be willing and able to communicate with one another. Political communities can sustain themselves over a long period of time only if there is shared understanding among members. There cannot be such understanding if people cannot communicate with one another and have access to some of the same forums of political and social debates or conversations. How does the Constitution deal with the language question?
Article 39(2) of the Constitution provides that every nation, nationality, and people “has the right to speak, to write and to develop its own language.” This is a provision with which I am wholly in accord. Language is not just a means of communication but an important cultural resource. It is often the means by which members of the linguistic group attach meaning and give structure to their cultural activities and rituals. Language is an important cultural software. Retaining and cultivating that resource seems to me to be important not just to the group of which it is the language, but for the entire country as well. After all, the cultural heritage of one group enriches the entire cultural pool within the country. And in a real sense, the culture becomes a heritage for all as well. The right of a group to speak and write its language will ensure the survival and flourishing of the language and the general culture to which the language often gives access.
The Constitution also gives members of the federation the authority to choose “their respective working languages.” That is what Article 5(3) provides. I assume most states have chosen the language of the ethnic or linguistic group after which the state is named as the working language of governmental institutions. This won’t necessarily be fatal to the idea of a united Ethiopia to the extent that there is a common language or common languages through which citizens can engage one another across the land.
However, as I noted earlier, if there are no common languages that enable citizens to communicate with one another (in the literal sense), it would be impossible for them to view themselves as engaged in a common project. Nothing signals more, and more strongly, that people are strangers to one another than their inability to comprehend each other.
It is true that the Constitution has adopted Amharic as “the working language of the Federal Government,” but that does not ensure that the vast majority of people who do not aspire to work in the federal bureaucracy or have little opportunity to do so will have developed the linguistic capacity to communicate with one another. In the long term, the impact of not having a national language or national languages might be that linguistic groups increasingly become strangers to one another.
At a minimum, children across the nation should be taught a national language or national languages as subjects so that people across the country will have the minimum linguistic capacity to communicate with one another. Otherwise, the gulf among the various groups will continue to widen. The Constitution seems to have laid the ground for that eventuality, at least by omission.
The making of fellow citizens
This is a very stressful time for Ethiopia, a country that certainly is no stranger to stress. But the stress that has had the greatest negative impact on the idea of an Ethiopia is a constitutional order that has turned neighbors into strangers and a nation into a United Nations.
The normative underpinning of a well-designed and structured constitutional order is an integrative process of association. The Ethiopian Constitution seems to have adopted a model of a dissociation constitutional system. In that, it stands almost alone. The long-term viability of a united Ethiopia under such a constitutional order is, in my view, in serious doubt.
It is not too late (and certainly not too early) to start a serious, broader, and more inclusive conversation as to what constitutional order will strike the appropriate balance between honoring the country’s diversity and forging a strong and durable Ethiopian identity. The current constitution is highly tilted to a dissociation order, making it doubtful that under it Ethiopia will remain a coherent political community let alone a prosperous one.
In the guise of pluralizing power, the Constitution has in fact fundamentalized difference. The intensity with which the historically drawn boundaries have been viewed as transcendentally authorized has led groups to convert differences into forms of otherness. The consequence will continue to be an environment that will not lend itself either to democratic governance or even minimal peace, the very things that the politics of recognition that the Constitution champions is meant to usher.
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This is the author’s viewpoint. However, Ethiopia Insight will correct clear factual errors.
Editor: William Davison.
Main photo: People in western Oromia displaced by conflict; November 2018; submitted.
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