Desperate Times Call for Extraordinary Constitutional Measures: The Necessity of Postponing the August 29, 2020 Federal Parliamentary/Regional Elections in Ethiopia (Part II)

By Alemayehu G. Mariam

Special Author’s Note: In Part I of this commentary last week,  I examined Proclamation No. 3/2020 (“State of Emergency Proclamation Enacted to Counter and Control the Spread of COVID-19 and Mitigate Its Impact”) enacted to respond to the looming COVID-19 crisis in Ethiopia and determined it passed constitutional muster and scrutiny under international standards. That Proclamation is narrowly tailored, clearly written and carefully balances the interests of individual liberty with the necessity of safeguarding public health and safety.

In Part II, I shall argue the Ethiopian Government, having crafted a model health emergency legislation in Proclamation 3/2020, must now follow through by postponing and rescheduling the August 29, 2020 federal/regional parliamentary elections by exercising its constitutional authority, which includes, among others, declaring a state of emergency.

I was pleasantly surprised last week to learn the Ethiopian Parliament had decided to hear and consider a report from the Ethiopian National Election Board on the untenability of holding elections on August 29, 2020 given the COVID-19 crisis. Two weeks ago when I began drafting my commentaries on the necessity of taking “extraordinary constitutional measures” necessitated by the COVID-19 crisis, I had no idea the Ethiopian Parliament would take prompt action. I am glad Parliament decided to address the issue early on and provide ample time for public dialogue and discussion of available options. Indeed, I am pleased to see robust dialogue between the ruling Prosperity Party and opposition parties.  I am also impressed by the high quality of legal analysis and constitutional commentary. I am also amused by some of the dogmatic and uninformed public dialogue.

I have written these commentaries on the necessity of taking extraordinary constitutional measures in light of the COVID-19 crisis for three special reasons.  First, I aim to promote and support informed and critical constitutional discussion on urgent and emergent social, legal and political issues facing Ethiopian society.

Second, I aim to share my knowledge and expertise as a teacher and practitioner of constitutional law in America.

Third, I want to make sure the voices of diaspora Ethiopians are heard in the constitutional dialogue and debate currently taking place in Ethiopia. It must never be forgotten that many diaspora Ethiopians have fought relentlessly to bring democracy, the rule of law and protection of human rights in Ethiopia. My participation in the defense and promotion of human rights for nearly a decade and half in Ethiopia has been a labor of love. I want to make it perfectly clear that many diaspora Ethiopians have earned the right through blood, sweat and tears to have a say in the fate of our country. Let it never be forgotten that we were the voice of Ethiopia when Ethiopia had no voice– when Ethiopia was muzzled– for 27 years. Today, we want to make sure we are heard and our views taken into consideration in these trying times and as those doing the heavy lifting in Ethiopia make their decisions about the coming election and the democratic changes to follow.

It is in this spirit that I share my views in these commentaries.

Nota Bene: This commentary is admittedly very long. The headings are intended to capsulize the relevant subject matter and readers may read each section independently and follow my analysis and arguments. But I am not apologetic for the length of the commentary. The gravity of the constitutional issues demands a thorough analysis and incorporation of supporting evidence. Those who seek instant answers for the serious constitutional questions raised in a paragraph or two will be disappointed. Only those interested in an in-depth understanding of the issues will likely benefit from my commentaries. I am aware there are many interested individuals who would like to read my commentaries but are unable to do so because of linguistic challenges. I fervently hope someone, from among my readers, will be able to translate this series of commentaries into Amharic for the benefit of those who do not read English.

The abuse and misuse of extraordinary measures in the form of “state of emergency” declarations in Ethiopia

Historically, extraordinary measures have been taken in Ethiopia in the form of “state of emergency” declarations. Indeed, such measures have been synonymous with abuse of power, extrajudicial killings, mass arrests and incarcerations and generally massive human rights violations.

In November 1974, the so-called Derg military regime declared a state of emergency and imposed martial law in Ethiopia. Ad hoc military tribunals summarily executed former imperial government officials accused of corruption, maladministration and negligence in the country’s famine. The Derg launched a campaign of Red Terror killing and jailing hundreds of thousands of Ethiopians without due process of law. In the late 1980s, the Derg declared a state of emergency in the northern provinces of Ethiopia and imposed martial law resulting in massive human rights violations.

On May 15, 2005, following parliamentary election that day, Meles Zenawi, the late leader of the regime of the Tigrean People’s Liberation Front (TPLF) in a nationally televised address declared a state of emergency by personal fiat (without constitutional authority) claiming he had to take action to “counter havoc and fear  created by opposition charges of abuses and a threat to reject the results.” Zenawi announced, “As of tomorrow, for the next one month no demonstrations of any sort will be allowed within the city and its environs. As peace should be respected … the government has decided to bring all the security forces, the police and the local militias, under one command accountable to the prime minister.” Zenawi immediately contradicted himself by stating, “We are not expecting any big danger, but as a government there is a role to play in looking after the peace and harmony of the people. This action is just simply a precaution to see that no one is endangered.” As a result of Zenawi’s state of emergency, nearly 800 persons were killed and over 30 thousand incarcerated. An Inquiry Commission created by Zenawi himself laid the blame entirely on Zenawi and his regime for excessive use of force.

I joined the Ethiopian human rights movement to vindicate the victims of the Meles Massacres of 2005.

On October 9, 2016, the government of the Tigrean People’s Liberation Front (TPLF) issued its “State of Emergency Command Post” Decree on the vague pretext that “the situation posed a threat against the people of the country.” That decree was issued in a futile attempt to brutally suppress popular opposition to TPLF ethnic oppression.

resolutely opposed that emergency declaration: “The T-TPLF did not declare a state of emergency for Ethiopia. It declared an emergency S.O.S. for the “S.S. (Sinking Ship) T-TPLF”.

Since 2009, the TPLF regime, for all intents and purposes, has used its so-called anti-terrorism law (Proclamation No. 652/2009), to impose a de jure (by law) state of emergency. Under that “Proclamation”, the T-TPLF created a police state and imposed a reign of terror. Thousands were arbitrarily arrested, tortured and killed on an industrial scale.

When Erin Burnett of CNN visited Ethiopia in July 2012, she described what she saw in stark terms:

We saw what an African police state looked like when I was in Ethiopia last month… At the airport, it took an hour to clear customs – not because of lines, but because of checks and questioning. Officials tried multiple times to take us to government cars so they’d know where we went. They only relented after forcing us to leave hundreds of thousands of dollars of TV gear in the airport…”

On March 19, 2017, the TPLF government announced it had lifted three elements of the state of emergency having to do with arbitrary searches and searches and curfews.

On March 30, 2017, the TPLF government authorized  a four-month extension of the state of emergency absurdly arguing  “82 percent of Ethiopians want a partial or full continuation of the state of emergency.”  More than 25,000 people suspected of taking part in protests were detained under that state of emergency.

resolutely opposed the extension of that state of emergency. I warned the TPLF they will never be able to contain the volcanic eruption of the people’s anger and frustration by declaring a command post government.

In June 2018, Prime Minster Abiy Ahmed permanently lifted the state of emergency and opened the political space for all contenders, including those declared terrorist and sentenced to death in absentia, to return to the country and help build a democratic governance process.

Let the facts speak out! Let us not lie to ourselves!

The history of state of emergency in Ethiopia over the past three decades has been a history of state terror on citizens.

Ethiopia has been under a de facto or de jure state of emergency since May 28, 1991, the date the TPLF rebels marched from the bush on the capital Addis Ababa until April 2018. That was the principal means the TPLF used to imposed its will on the people of Ethiopia.

The unfortunate fact is that civilian and military dictators in Africa have ruled by declaration of state of emergency for far too long.

In 2011, Tunisia declared state of emergency following unrest from economic issues leading to the Arab Spring.

Egypt was ruled under a permanent state of emergency for 32 years, indeed a military dictatorship, which granted security forces sweeping powers of arrest, detention and prosecution in special courts was in place until it presumably ended in 2012. It seems the permanent state of emergency continues in Egypt today as President Abdel-Fattah el-Sisi managed to remain president for life, at least until 2030.

In 2013, Nigeria declared a state of emergency for the entire northeastern states of Borno, Yobe and Adamawa because of attacks by the terrorist group Boko Haram.

In 2016, Namibia declared last a state of emergency because of an ongoing drought.

In 2017, Zambia declared a state of emergency following a fire that destroyed country’s biggest market in the capital Lusaka.

In 2019, Sudanese president Al Bashir declared a one-year state of emergency and dissolved the country’s central and state governments and replaced them by military leaders. He was subsequently overthrown which declared a state of emergency.

In 2019, Sierra Leone declared a state of emergency over widespread occurrences of rape and sexual assault in that country.

Why I support a declaration of a state of emergency to postpone the August 2020 election

It is a fair question to ask why I would urge, not merely support, postponement and rescheduling of the August 2020 election by declaration of a state of emergency or other constitutional mechanisms given my history of opposition to such declarations.

First, COVID-19 has been a global game changer. The pandemic has rocked the global economic system to the core. Even the most advanced industrialized countries are unable to withstand the chaos and dislocation created by COVID-19. The world has been reduced to a global village and the fate of the villagers intertwined. Countries have sought to deal with the COVID-19 crisis by taking extraordinary measures. As I demonstrated in Part I of my commentary last week, the Ethiopian Government drafted and implemented  Proclamation No. 3/2020 (“State of Emergency Proclamation Enacted to Counter and Control the Spread of COVID-19 and Mitigate Its Impact”). I will not rehash those points here.

Second, as a die hard constitutionalist, I would like to see the Ethiopian Constitution serve as working, living and breathing instrument of government. Since its adoption in 1995, the Ethiopian Constitution has been abused and misused by the TPLF regime to practice “constitutional dictatorship” in the form of a state of emergency or command post government. The Constitution served and protected only the interests of the TPLF. For everyone else, the Constitution was not worth the paper on which it was written. The TPLF’s maxim was always,  “Justice for Just Us.”

While I believe that Constitution needs massive overhaul, the fact remains, to paraphrase a military metaphor of former U.S. Defense Secretary Don Rumsfeld, “You resolve a constitutional question you have, not by a constitution you might want or wish to have at a later time.” There are multiple answers in the Ethiopian Constitution to address the question at hand.

Third, the government of PM Abiy Ahmed has repeatedly declared its wish, desire and determination to hold free and fair elections on numerous occasions. That commitment is irrevocable come hell or high water. Indeed, to make that possible, from the very beginning the government has completely opened the political space allowing organizations and individuals previously declared “terrorists” and “criminals” to participate in a peaceful manner. The government has even tolerated, in the face of enormous public pressure, individuals and organizations that have openly and flagrantly flouted the law in the interest of social harmony. No government that intends to impose dictatorial rule would allow the opposition that is sworn to violence and force to participate in the democratic process. That gives me great confidence that postponement of the election for 6 months will not lead to abuses of power or violation of human rights.

Fourth and most importantly, the government of PM Abiy has been committed to the principles of the rule of law, inclusivity, due process, resolution of problems by dialogue in free and open forums and full accountability and transparency. Until substantial and credible evidence (not bellyaching, teeth gnashing, mudslinging, whining and finger pointing) to the contrary is shown, I shall grant the full benefit of the doubt to the government based on what it has done to date in protecting human rights, institutionalizing the rule of law and promoting free and fair elections.

Fifth, unlike Ethiopia, many governments have criminalized reporting on COVID-19. The Egyptian Government made reporting on COVID-19 inconsistent with the government narrative a crime. Amnesty International reported, “The Egyptian authorities have made it very clear that anyone who challenges the official narrative will be severely punished.” Other countries that have criminalized COVID-19 reporting under a state of emergency decree include Iran, China, Hungary and South Africa, among others. Rodrigo Duterte shut down Philippines’ largest television network because he did not like the way the station reported on COVID-19.

In contrast, in Ethiopia under Article 7 (2) of Proclamation 3/2020, compels the private media to report on COVID-19 and participate in public education programs aimed at mitigation. If the Ethiopian government was interested in abusing power under a state of emergency decree, Proclamation 3/2020 would have provided it its best pretext. But the Ethiopian government chose to fight the COVID-19 war with full accountability, transparency and media scrutiny. I am very much impressed by that commitment. But I hasten to add that the media bears a heavy responsibility in its role as “watch dog”. It must not be a patsy for purveyors of lies, fake news and disinformation.

Understanding the juridical fact of “state of emergency”

In my discussions with may Ethiopian scholars, activists and political leaders, I have concluded most of them are unaware of the juridical nature of a “state of emergency” or the declaratory legislative act that brings it into existence. Indeed, I am surprised that many confuse declaration of state of emergency with martial law. While a declaration of a state of emergency may be used to impose martial law, it is different in the fact that under martial law the military takes direct functions of ordinary civilian government instituting military administration as was the case during the Derg regime in Ethiopia.

The modern idea of “state of emergency” has roots in Roman antiquity in which a “Roman magistrate with extraordinary powers was appointed during an emergency”. Indeed, “in the fifth and fourth centuries, the dictatorship was also used to solve internal problems, e.g., to conduct difficult elections or solve a constitutional crisis.” At the onset of the “Reign of Terror” in 1793 in the French Revolution, Robespierre and the Committee for Public safety declared a state of emergency and arbitrarily jailed and executed their opponents. It is after the French Revolution that “state of emergency” regimes became common and widespread especially in the 20th century.

There are two general perspectives on the legality of a “state of emergency”. One leading scholar on the subject argues declaration of state of emergency is a function of sovereignty. According to this view, “a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal.” The sovereign power may in its discretion bring about “a total suspension of the law and then to use extra-legal force to normalize the situation.” The competing legal/rule of law view argues legal norms, conditions and standards could be established for a declaration of a state of emergency with built-in safeguards to prevent abuse of power.

I do not regard the two views as mutually exclusive. I shall argue that a declaration of a state of emergency is inherently a sovereign act but is most effective when it is sanctioned and legitimized by constitutional or statutory authority. A government may declare a state of emergency when it determines the normal course and systems of governance are incapable of addressing an extraordinary occurrence. For instance, a government facing external aggression, imminent domestic insurrection, uncontrolled widespread civil unrest, natural disasters and epidemics does not necessarily obtain prior legislative approval before acting.

The scope of special emergency powers is determined by a given country’s constitution and   laws. Generally, a declaration of a state of emergency may restrict press freedom, prohibit public gatherings, grant security and military forces special powers of arrest and detention without due process of law, authorize extrajudicial search and seizures, regulate the economy and the operation of businesses and the like.

General state practice shows a country’s constitution or legislation normally describes the circumstances that can give rise to a state of emergency, enumerates the procedures to be followed and prescribes the scope of authority to be exercised under emergency powers. Usually, the head of the executive branch either declares a state of emergency and notifies the legislature within a specified period of time for ratification or proposes a declaration of state of emergency to the legislature to enact it into law. In a few countries, the legislature declares a state of emergency sua sponte.

Most constitutions require well-considered justifications and sufficient facts for the decision to declare a state of emergency and the specific measures to address the situation, among others: 1) facts supporting existence of extraordinary circumstances posing a fundamental threat to the country; 2) the legal framework consisting of constitutional and legislative authority for the implementation of the emergency declaration; 3) the emergency preparedness plan and operational framework for implementation of the state of emergency for a designated period; 4) specification of a sunset clause or a time definite for termination of the state of emergency ; 5) provisions for further extension of the state of emergency and related procedures and 6) procedures for post state of emergency review and accountability.

It is of the utmost importance that in a state of emergency, full control and responsibility for government operations and functions remain with civilian authorities. Military, police and security agencies must be subject to full civilian control or civilian supremacy. The alternative is a slippery slope to martial law.

Most parliaments also have the power to review the state of emergency at regular intervals and to suspend it as necessary.

In most national constitutions including the United States, no one individual has the sole authority to declare a state of emergency. Though a president or prime minster may initiate a declaration of state of emergency, it is often the case that the parliament and in the U.S., the Congress, that has the power to issue the declaration or retroactively ratify it as the U.S.  President Abe Lincoln’s assertion of vast presidential war powers during the civil war is instructive. In 1861, Lincoln claimed as commander-in-chief he had the power to “take any measure which may best subdue the enemy”, declared martial law and suspended the writ of habeas corpus by presidential decree and authorized the trial of civilians by military courts. He declared, “I may in an emergency do things on military grounds which cannot be done constitutionally by Congress.”  Subsequently, Congress ratified Lincoln’s actions.

State of emergency declarations must conform to international law

State of emergency declarations often involve restrictions on the course of social, economic, civil and political activity and curtail civil liberties and rights. The overriding concern is always the abuse and misuse of a state of emergency by the ruling regime issuing the declaration to suppress the opposition, dissent and human rights.  All states should have an interest in ensuring that the declaration and implementation of states of emergency are subject to certain limitations and proceed in accordance with international norms.

Ethiopia became a party by accession to the International Covenant on Civil and Political Rights (ICCPR), in June 1993. Article 4 to the ICCPR allows states “in a time of public emergency to take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation”, subject to notification of the Secretary-General of the United Nations.

Under ICCPR, there are additional requirements that states must meet in justifying a declaration of a state of emergency:

1) it must be supported by substantial evidence of exceptional, real and imminent threat to the nation; 2) the declaration must not negate the principle of the rule of law or encourage state action in violation of the principle of the rule of law; 3) it must not condone or approve violations of non-derogable fundamental human right principles including the prohibition on torture, freedom from slavery, freedom of thought, conscience and religion and the right to recognition before the law, the humane treatment of all persons deprived of their liberty, prohibition of propaganda advocating war or national, racial, or religious hatred; 4) citizens must be fully informed of the facts and legal basis for the declaration; 5) the state must notify  appropriate treaty-monitoring bodies as per Article 4; 6) the aim at the end of the limited state of emergency must be to secure a swift return to normalcy and the restoration of the constitutional order in which rights can again be fully ensured; 7) whatever the emergency situation, the post hoc accountability powers of parliament, i.e. the right to conduct inquiries and investigations on the execution of emergency powers ought to be guaranteed by law. This is important for both assessing government behaviour and identifying lessons learned with a view to future emergencies.

The UN High Commissioner for Human Rights has recently published detailed guidelines on the declaration of state of emergency necessitated by the COVID-19 crisis incorporating ICCPR treaty language. A proper state of emergency declaration must be 1) “strictly temporary in scope”; 2) “least intrusive to achieve the stated public health goals” and 3) “include safeguards such as sunset or review clauses, in order to ensure return to ordinary laws as soon as the emergency situation is over.”

To declare or not to declare a state of emergency to postpone the August 2020 election is NOT the question

On March 31, 2020, the independent Ethiopian Election Board (Art. 102, Ethiopian Constitution) issued a statement that “because of issues related to the coronavirus, the board has decided it cannot conduct the election as planned… so it has decided to void that calendar and suspend all activities.” On April 30, Board  Chair Birtukan Mideksa formally reported to the Ethiopian parliament that given COVID-19, it is “impossible” for her Board to do the vital preparatory work to conduct a free and fair election. Because of COVID-19, the Board could not undertake voter registration and education, ballot preparation and distribution of election materials, organize election observers and train election workers, supervise nomination of candidates, monitor campaign activities, organize polling booths and other related essential functions.

It is manifest to all reasonable minds that the August elections cannot proceed with the COVID-19 crisis upending the country’s social, economic and political system. It is foolhardy,  downright reckless and dangerous to even suggest that full-scale election campaigns and electoral preparations can go on given the great uncertainties in the spread of COVID19 in Ethiopia. It is because of the deep uncertainties in the burgeoning COVID-19 crisis, the need to devote all available material and human resources to its prevention, treatment and mitigation, the necessity to deal effectively with the social and economic dislocations caused by the crisis and ultimately to ensure a free and fair election that can withstand international standards and scrutiny that the election must be postponed for a reasonable period of time or until the pandemic threat is declared minimal for normal processes to continue.

Unfortunately, the constitutional timetable cannot be met because of the force majeure of COVID-19. To proceed with the August election would be playing Russian roulette on the heads of 110 million Ethiopian with a fully loaded gun. Untold numbers of people could die and the resulting impact on society would be catastrophic.

The question is not whether a state of emergency can be declared to postpone the August 2020 election. The question is how best to postpone the election with public dialogue that maximizes accountability, transparency, inclusivity and collective concern for the public good.

The constitutional matrix for postponement of the August 2020 election

Mamo Mehretu has summarized the various suggested options along four dimensions: 1) The current government stays with a limited mandate as “caretaker” after the dissolution of parliament; 2) The current government extends term through a state of emergency and enjoys regular full mandate; 3) Clarification can be obtained through a constitutional amendment; and 4) The question could be referred to the House of Federation’s Council of Constitutional Inquiry, for constitutional interpretation and final determination. Ethiopian legal experts have studied the issues and made their recommendations.

Transitional government?

First, let me dispose of two arguments that claim there are no constitutional options to postpone the election. Proponents argue the only solution is political and insist on the formation of a “transitional government.” Second, TPLF leaders have proclaimed they can organize and run their own election in Tigray region “because there will not be a legitimate government after September 2020” when the current five-year term ends for the current parliament.

In August 1991, I wrote a commentary on the TPLF’s proposals for a “transitional government reflecting the differences of opinion, interests and aspirations of the peoples of the country.” The late TPLF leader Meles Zenawi said Ethiopia’s problems stemmed from “denial of democratic rights” and pronounced the end of an “unjust system that relegated the people to the status of second-class citizens in their own country.” The TPLF “transitional government” led to a 27-year TPLF dictatorship in Ethiopia.

In 2015, I argued Ethiopia needs a “a successful transition from dictatorship to constitutional democracy. Ethiopians need to practice the arts of civil discourse and negotiations. As difficult and embarrassing as it is to admit, many Ethiopian elites on all sides seem to suffer from a culture of inflexibility and zero-sum gamesmanship.” In other words, those who clamored for a transitional government in 2015 and those clamoring for it today cannot even sit together and have a conversation on soccer let alone dialogue meaningfully over the weighty issue of forming a transitional government. None of the “leaders” publicly urging formation of a transitional government today have any credibility and are known for their dishonesty, duplicity and mendacity.

A “transitional government” for six months until a new election can be held is absurd and nonsensical.

Manifestly, the proponents of the formation of a transitional government are naïve, ignorant, benighted or all three. Transitional governments are not formed in a day or even a month. They are extraordinarily difficult and often futile exercises. There are many preparatory undertakings that must precede even before the parties to form such a government are brought together for discussion. Independent third-party intermediators must be established. Contentious agenda items must be negotiated. Terms of power sharing must be drafted and circulated. Contending groups and leaders must be selected using criteria likely to be contentious. Deadlines and timetables must be set and other logistical arrangements must be made.

Talk of a transitional government is a red herring, an irrelevant topic introduced to divert public attention.

The proponents of a transitional government in Ethiopia should carefully study the experience of South Sudan.

In 2015, leaders of contending factions in South Sudan signed an agreement to create a transitional government, which did not even last until the ink on the agreement dried. Because of the failure to implement that agreement, hundreds of thousands of innocent South Sudanese died in factional violence and massive human rights violations were committed by both sides.

In 2019, pressured by the U.N and the U.S., the South Sudanese leaders again agreed to form a transitional unity government to end a five-year civil war.

It was not until February 2020, barely two months ago, that the South Sudanese were able to implement a transitional government agreement. How long that will last is anybody’s guess.

The proposal for a transitional government for Ethiopia until the next election, following postponement of the August 2020, is an invitation to anarchy, disorder, lawlessness and mobocracy.

Those who are howling for a transitional government in lieu of postponement of the August 2020 election are either willfully ignorant, think they can steal their way into power in the chaos of a transitional government or both. Truth be told, what these “leaders” want is not a transitional government. They want to create chaos in government so that they can transition themselves into power.

The TPLF’s plans for an illegal regional election

The TPLF’s proclamation that they will proceed to have elections in August 2020 in complete disregard of the mandate in Article 102 of the Ethiopian Constitution shows the utter hypocrisy and abysmal duplicity that is coded in their DNA. Article 102 provides, “There 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.”

The TPLF has always been a fair-weather friend of the Ethiopian Constitution. They will pontificate and defend the Constitution when it suits their purposes and throw it away like a dirty rag when they are held to account under it.

The TPLF Central Committee Official Statement on the Occasion of the 45th Anniversary in February 2020, barely two months ago, proclaimed:

Institutions and institutionalism are being destroyed. Reversal of the country’s achievements accompanied by monstrous violations and actions in both the economic and the political fronts are prevalent. The Constitution, which is the only reliable savior of the country, is violated and rule of law is endangered…The continuity of the country is guaranteed only when the Constitution and the federal system of governance are respected. Thus, we assure you that TPLF will work with you in strengthening and scaling up the struggle you have already begun to save the Constitution and the multinational federal system.” (Boldface added.)

In May 2020, the TPLF is caught red handed destroying institutions and institutionalism –indeed, the most important institution of democratic election – established under Article 102.  When the TPLF invokes the Constitution to suit its purposes it is “the only reliable savior of the country.” When it does not, it is not worth the paper it is written on.

The proclamations of the TPLF merchants of lies, deceit and duplicity remind me of lines from Shakespeare’s Merchant of Venice:

The devil can cite Scripture for his purpose.
An evil soul producing holy witness
Is like a villain with a smiling cheek,
A goodly apple rotten at the heart.
O, what a goodly outside falsehood hath!

So, the TPLF Princes of Darkness can cite the Constitution for their own purposes with a smiling cheek!

In 2006, I wrote a commentary severely criticizing the TPLF regime for its failure to respect its constitution in the treatment of the Kinijit Party defendants and others. One of the charges against those defendants was violation of Article 238 of the Penal Code (“Outrages against the Constitution or the Constitutional Order”). Suffice it to say that the TPLF proclamation to hold a regional election in Tigray in violation of Article 102 of the Ethiopian Constitution and a flagrant violation of Article 238 of the Penal Code (“Outrages against the Constitution or the Constitutional Order”).

I am not surprised by the TPLF’s threat to breach the Constitution for two reasons. First, since its adoption in 1995, the Ethiopian Constitution has been abused and misused by the TPLF regime to practice “constitutional dictatorship” in the form of a state of emergency or command post government. The Constitution served and protected only the interests of the TPLF. For everyone else, the Constitution was not worth the paper on which it was written. The TPLF’s maxim was always,  “Justice for Just Us.”

Second, the TPLF was established for the single purpose of creating a “Tigray State”. In its Manifesto, the TPLF declared its mission is to create an independent Tigray State. The TPLF claimed Tigray was invaded by (Emperor) Atse Menelik and became an Amhara colony.  When the TPLF was in power, its core strategy was to systematically cleanse Ethiopian national identity, history and consciousness. It is a fact that the TPLF has NEVER repudiated its Manifesto.

In the 1990s, the late Meles Zenawi  was fond of saying that without his guiding hand and TPLF leadership, Ethiopia will go the way of Yugoslavia. Balkanization was Meles’ dream for Ethiopia. It is the TPTLF’s dream today. For a quarter of a century, the TPLF toiled day and night to carve up and chop up Ethiopia to facilitate and prolong their rule.

Having failed to dismember Ethiopia, the TPLF now prepares to dismember Tigray from Ethiopia by holding an illegal election. (Aya jibo, satamehagne bilagn.) 

No one should be surprised. The TPLF leaders are experts in holding fake elections. If they do hold their illegal elections, that is all it will be. Illegal. Unconstitutional and fake.

If the TPLF is conducting its illegal election by contriving a so-called constitutional crisis to implement their dream of a “Tigray State” foretold in their Manifesto., they will fail! 

We must be clear about the constitutional issues at hand

The constitutional question on the delay and postponement of the August 2020 election arises from an apparent lack of clarity in Article 58 (3) of the Ethiopian Constitution which mandates, “The House of Peoples’ 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.”  Unfortunately, Article 58 does not expressly anticipate postponement or delay of elections or provide for extraordinary circumstances that could prevent an election as prescribed in the timetable.

The current term of parliament expires by the end of September 2020, which means under Article 58 (3), the election must take place by the end of August. The problem is such an election cannot be held within the constitutionally prescribed time frame because of the COVID-19 crisis.

The question is what constitutional mechanism are available to address the apparent lack of express language authorizing postponement or delay of an election under Article 58?

The experience in American constitutional jurisprudence should prove instructive in this regard.

The U.S. Constitution contains 4,543 words, including the signatures and with the 27 amendments comes to a total of 7,591. The Constitution “phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text…”

The 19th century British Prime Minister William Gladstone said, “The American Constitution is, so far as I can see, the most wonderful work ever struck off at a given time by the brain and purpose of man.” I agree and am very proud to have had the privilege to teach, practice and defend it in the highest state and federal courts of the United States.

In contrast, the Ethiopian Constitution barely three decades-old and contains 13,625 words by my count. It needs much refinement and careful redrafting.

The 1787 U.S. Constitution does not designate a branch of government to definitively resolve constitutional questions and issues. Article III which creates the judicial branch does not grant the Supreme Court the express power to review the constitution and render a definitive interpretation.

In 1803, in Marbury v. Madison, arguably the single most important case in American legal history, the U.S. Supreme Court case established the principle of judicial review. Justice John Marshall declared it was the exclusive duty and responsibility of the judicial branch to interpret and apply the language of the Constitution. “It is emphatically the province and duty of the judicial department to say what the law is,” including the supreme law of the land. With that case, Marshall managed to establish the power of the court as the ultimate arbiter of the Constitution. The U.S. Constitution has been developed through interpretation and re-interpretationby the courts.

Unlike the U.S. Constitution, the Ethiopian Constitution clearly delegates the ultimate power of constitutional interpretation to the House of Federation with investigative powers granted to Council of Constitutional Inquiry. To borrow from Marbury v. Madison, “It is emphatically the province and duty of the House of Federation to say what the constitutional law is and is not.” Indeed, the House of Federation over the past decades has been engaged in “investigating questions of constitutional interpretation from various individuals and sections of the society.”

Article 62 (1) provides, “1. The House has the power to interpret the Constitution.”

Article 83 (1) “All constitutional disputes shall be decided by the House of the Federation. 2. The House of the Federation shall, within thirty days of receipt, decide a constitutional dispute submitted to it by the Council of Constitutional Inquiry.”

Article 84 (1) “The Council of Constitutional Inquiry shall have powers to investigate constitutional disputes. Should the Council, upon consideration of the matter, find it necessary to interpret the Constitution, it shall submit its recommendations thereon to the House of the Federation.”

Therefore, there is no question that the House of Federation and Council of Constitutional Inquiry have the power to review the issue of delay or postponement of the August 2020 election under Article 58 and render a final determination.

The task of the Council of Constitutional Inquiry are spelled out in Article 84(1) of the Constitution (which empowers the Council to “investigate constitutional disputes”)  and Proclamation 798/2013. The Council is established as an independent body (Art. 15) consisting of the President and Vice President  of the Federal Supreme Court as chair and vice chair respectively, six legal experts of high standing  appointed by the President of the Republic on recommendation by the House of Peoples’ Representatives, and three persons designated by the House of the Federation from among its members.

Under Article 3 of Proclamation 798, the Council has the power to consider and review for constitutionality “any law or customary practice or decision of government organ or decision of government official” submit its recommendation to the House of the Federation.” Under Article 9, the Council has the power to compel “pertinent institutions or professionals, to appear before it and give opinions.”

The House of Federation and the Council are expected to review issues before them fairly and impartially and with fidelity to the principles of constitutionalism, fairness, equity and justice.

While I am not presumptuous enough to tell the House of Federation and Council of Constitutional Inquiry on how to perform their constitutional responsibilities, I would like to share my experience as a teacher and practitioner of American constitutional law for over three decades. Indeed, I have been privileged to spar in and out of court with some of the highest jurists and academics in America on constitutional interpretation. I trust the Federation and Council will consider my views as part of their deliberation.

In performing constitutional review, I believe the House of Federation must be guided by two questions:

First, in the absence of express language authorizing delay or postponement of an election under Article 54, does a force majeure epidemic recognized under Proclamation 3/2020 provide a necessary and sufficient condition for postponement under Article 93 (a)?

Second, is there an independent constitutional basis to postpone the August 2020 election based exclusively on Article 93 (a)?

The first question requires the House of Federation to interpret Article 54 and determine whether postponement can be obtained consistent with the language and spirit of that Article.

First, let me state that Ethiopia, unlike the United States, does not have a well-established tradition of constitutional interpretation. The U.S. has a rich constitutional history that spans well over two centuries. There are hundreds of thousands of constitutional appellate decisions that serve as precedent and countless numbers of academic and scholarly treatises and critiques on the constitution and how it should be interpreted. Ethiopia does not have the benefit of a well-developed constitutional jurisprudence and scholarship.

In the absence of guiding judicial precedents, doctrines, standards and tests to interpret and fix the meaning of constitutional language, the House of Federation and Council should follow an approach/principle employed widely by American jurists called “Ockham’s razor”, which prescribes the correct answer is often the simplest one. In other words, in their task of constitutional interpretation, the Federation and Council should not waste time engaging in academic and scholastic analysis and debates and be distracted by inconsequential political rhetoric squandering their energies. Rather, their aim should be provide a simple direct answer based on an ordinary understanding of language found in Article 58 and related provisions of the Constitution and render a decision based on reasonable explanations.

In my view, the House of Federation should begin its constitutional analysis NOT by simply focusing on Article 58 but rather by undertaking a structural interpretation of Article 58 within the bundle of constitutional provisions dealing with elections, including Articles 38(1)(c); 38(3); 54 (1), 58(3) and 102(1) (relevant constitutional provision are excerpted at the end of this commentary), the totality of the structure of the constitution and the history of the electoral process since the promulgation of the Constitution in 1995.

The texts of Article 54(1), 58 (3) and 102(1) are clear on the constitutional mandate of ensuring election of members of the House of Peoples’ Representatives for a term of five years in a free and fair elections and for the National Election Board to be the sole organizer and arbiter of such an election. The texts of Article 38 (1)(c) and (3) are equally clear in underscoring the necessity of having elections that “guarantee the free expression of the will of the electors” and that such elections “be conducted in a free and democratic manner.”

The seminal question within the bundle of these provisions is why the drafters of the Constitution omitted contingency language in the event an election could not be held as mandated in Article 58(3). Were the drafters simply unaware of a possibility that could lead to a postponement of an election? Did they intentionally omit such language? Did they intend to create chaos and anarchy by leaving out a contingency clause?

A fair and reasonable reading of Article 58(3) shows that the language therein was intended to be an ironclad constitutional guarantee that elections will take place as prescribed, and not to preclude delay or postponement under extraordinary circumstances. Article 58 did not provide qualificatory language for postponement or delays because the drafters had already anticipated and provided for such extraordinary circumstances under Article 93, which specifically include external invasion, a breakdown of law and order which endangers the constitutional order, a natural disaster, or an epidemic. For instance, there could be no election if the country is under external invasion. The outcome is the same if the country is facing a pandemic of global proportions.

One of the principal purpose of constitutional interpretation is to harmonize the meaning of constitutional language and to illuminate obscure implications locked in words and reconcile linguistic omissions with intended constitutional purposes to produce fair and reasonable outcomes, and in extreme cases to sever language that is manifestly repugnant to the scheme of the constitution.

The House of Federal and Council of Constitutional Inquiry should consider the constitutional scheme evident in Articles 38, 54, 58 and 102 and obtain a result that harmonizes these provisions in rendering their judgment.

Alternative I- Constitutional basis for postponement of the August 2020 election under Article 93

In my constitutional analysis, the critical issue is not the simple fact of meeting a designated constitutional deadline for an election but most importantly the fact of ensuring elections that are held are free and fair. It is pointless to have an election on a particular date if it is not free and fair.

Since 1991, Ethiopia has had elections for the purpose of having elections but none of them were free and fair. For the TPLF elections were nothing more than ritualistic practices and not a process by which the people elected their leaders freely and fairly. Indeed, for the TPLF elections were political theater staged for the benefit of donors and loaners as I argued in my 2009 commentary. Before an election, the TPLF created a fanfare, snagged millions of dollars in aid to conduct the elections and on election day declared total victory. I called elections under the TPLF regime “elektions”, that is fake elections.

In 2011, Seeye Abraha, one of the founders of the TPLF wrote, “The most incredible fact about the May 2010 Ethiopian election is not that the ruling Ethiopian People Revolutionary Party (EPRDF) won; that was foreordained.”

A foreordained election is not much of an election. It is political drama.

In a country where there are over 80 political parties, in 2010, the TPLF regime claimed to have won 99.6 percent of the seats in parliament in 2010.

In 2015, the TPLF claimed it had won 100 percent.

Neither the 2010 nor 2015 elections could be called free and fair by any reasonable standard but they were held on the constitutionally prescribed date.

An election that is not free and fair is no election at all. It is a travesty of election, a monumental disregard of the democratic right to self-government.

Whether or not the August 2020 election should be postponed should pivot on a single question: Given the COVID-19 crisis, is it possible to have a free and fair election in August 2020?

For me, elections under the Ethiopian Constitution is not about having a mechanical process of selecting candidates on a prescribed date. It is about ONE and only ONE thing: Having a free and fair election!

While ignorant demagogues and political junkies bandy the phrase “free and fair election” like expletives, it is rooted in universally accepted principles and practices.

The Inter-Parliamentary Union which represents 179 parliaments, including Ethiopia’s, has published standards for free and fair election which include establishment of 1) procedures and criteria for voter registration, initiation or facilitation of national programs of civic education on election procedures and issues; 2) neutral, impartial mechanism for the management of elections; recruitment and training of election officials and operatives; 3) procedures to ensure the integrity of the ballot and institution of  measures to prevent voting fraud, establishment of mechanisms to ensure the integrity of the vote counting process, 4) mechanisms to ensure freedom of movement, assembly, association and expression for all contenders, particularly in the context of political rallies and meetings and creating conditions that will ensure parties and candidates are free to communicate their views to the electorate and 5) updating of electoral rolls and balloting procedures, and monitoring of performance under election Code of Conduct, among others.

The African Union Declaration on the Principles Governing Democratic Elections in Africa sets similar standards for free and fair election. Under Section III are listed numerous factors that must exist to ensure a free and fair election including: compilation of voters’ registers, establishment of national electoral bodies staffed by qualified personnel, set up of safeguards ensuring freedom of movement, assembly, association, expression, and campaigning, promote civic and voters’ education on the democratic principles and values in close cooperation with the civil society groups, implementation of measures to prevent the perpetration of fraud, rigging or any other illegal practices throughout the whole electoral process, ensure the availability of adequate logistics and resources for carrying out democratic elections and provision of adequate security to all parties participating in elections as well as accrediting national and/other observers/monitors.

These internationally recognized conditions for a free and fair election simply cannot be met today or in August 2020 as unequivocally stated by the head of  the National Election Board because of the COVID-19 crisis.

What constitutional options are available to ensure that a free and fair election is held?

Since the reason precluding a free and fair election in August 2020 is COVID-19 and since COVID-19 is constitutionally recognized as creating a state of emergency in Proclamation 3/2020, it follows that an already recognized emergency under Article 93 is a constitutionally sufficient condition to postpone the election by a declaration of a state of emergency.

The constitutional framework for Proclamation 3/2020 include Article 77(10) (“The Council of Ministers has the power to declare a state of emergency; in doing so, it shall, within the time limit prescribed by the Constitution, submit the proclamation declaring a state of emergency for approval by the House of Peoples’ Representatives.”) and Article 93 which provides:

  1. (a) The Council of Ministers of the Federal Government shall have the power to decree a state of emergency… [in the event of] … an epidemic….
  2. (a) If declared when the House of Peoples’ Representatives is in session, the decree shall be submitted to the House within forty-eight hours of its declaration… [and when not in session it]  shall be submitted to it within fifteen days of its adoption.
  3. A state of emergency decreed by the Council of Ministers, if approved by the House of Peoples’ Representatives, can remain in effect up to six months [and extended]… by a two-thirds majority vote…every four months successively
  4. (a) When a state of emergency is declared, the Council of Ministers shall… have all necessary power to protect the country’s peace and sovereignty, and to maintain public security, law and order.

(b) The Council of Ministers shall have the power to suspend such political and democratic rights contained in this Constitution to the extent necessary to avert the conditions that required the declaration of a state of emergency.

(c) In the exercise of its emergency powers the Council of Ministers cannot, however, suspend or limit the rights provided for in Articles 1, 18, 25. and subArticles 1 and 2 of Article 39 of this Constitution.

The House of Peoples’ Representatives, while declaring a state of emergency, shall simultaneously establish a State of Emergency Inquiry Board, comprising of seven persons to be chosen and assigned by the House from among its members and from legal experts [with the duty of]…mak[ing] public within one month the names of all individuals arrested on account of the state of emergency together with the reasons for their arrest… [ensure] no measure taken during the state of emergency is inhumane… [and] (c) To recommend to the Prime Minister or to the Council of Ministers corrective measures if it finds any case of inhumane treatment.

The Council of Ministers of the Federal Government has the plenary constitutional power to declare a state of emergency, in much the same way as it did in Proclamation 3/2020 and postpone the election for the constitutionally mandated period of six months.

A Proclamation to postpone the August 2020 election should be crafted in the same way as Proclamation 3/2020.

Alternative II: Constitutional basis for postponement of the August 2020 election under Article 60: Dissolution of Parliament  

The Prime Minister has plenary powers to dissolve parliament before the expiry of its term.  The Prime Minister is required to consult and obtain the consent of Parliament but ultimately the power to dissolve parliament is delegated to the office of the prime minister. The post-dissolution government will serve as a “caretaker” government.

Article 60 (1) provides, “With the consent of the House, the Prime Minister may cause the dissolution of the House before the expiry of its term in order to hold new elections.”

Article 60 (3) provides, “If the House is dissolved pursuant to sub-Article 1 or 2 of this Article, new elections shall be held within six months of its dissolution.”

Article 60 (5) provides, “Following the dissolution of the House, the previous governing party or coalition of parties shall continue as a caretaker government. Beyond conducting the day to day affairs of government and organizing new elections, it may not enact new proclamations, regulations or decrees, nor may it repeal or amend any existing law.”

Dissolution of parliament is not a viable alternative. Indeed, it is recipe for anarchy and chaos. The post-dissolution government is mandated to play the role of “care taker” which means it is limited in its scope of action. The Prime Minster and the Council of Ministers will be limited to “essential business”. They cannot undertake any new policy initiatives. They cannot make new appointments. They cannot enter into international agreements.

Could any reasonable person seriously consider a “care taker government” when Ethiopia is facing an existential threat unprecedented in living memory?

Could any reasonable person seriously consider a “care taker government” when hundreds of thousands, and possible more, Ethiopians are facing a death sentence at the hands of COVID-19?

Could any reasonable person seriously consider a “care taker government” when Ethiopia is in the grips of COVID-19, Egypt is saber-rattling and beating the drums of war against Ethiopia if Ethiopia should begin to fill the Grand Renaissance Dam in July 2020?

Could any reasonable person seriously consider a “care taker government” when there are those proclaiming to hold their own elections in violation of Article 104 of the Constitution and de facto create their own state?

Could any reasonable person seriously consider a “care taker government” when the world’s leading economists are predicting COVID-19 will exact “a heavy toll on the Ethiopian economy”?

Could any reasonable person seriously consider a “care taker government” when so-called leaders are stoking the flames of ethnic and religious division so that they can grab power?

Could any reasonable person seriously consider a “care taker government” when Ethiopia is rising as a model of democracy, rule of law and human rights in Africa and the rest of the world?

Could any reasonable person seriously consider a “care taker government” when Ethiopia needs hundreds of millions of dollars in loans and aid to fight COVID-19 but will not have a government capable of concluding international agreements. The IMF gave Ethiopia over USD 400 million because it was impressed by the approach and commitment of the government of PM Abiy Ahmed in the COVID-19 crisis. The IMF Managing Director Kristalina Georgieva tweeted, “I commend the swift and decisive response by @AbiyAhmedAli  and #Ethiopia to mitigate the impact of #COVID19.”

PM Abiy will not be able to deal with the IMF, the Wold Bank or any other government or agency if he is the head of a caretaker government!

For lack of a more appropriate phrase fit for polite company to describe my reactions to a dissolved parliament followed by a caretaker government, I will simply say, Bah! Humbug!

Alternative III: Constitutional basis for postponement of the August 2020 election under Article 104 – Amending the Constitution

Article 104 provides for a constitutional amendment: “Any proposal for constitutional amendment, if supported by a two-thirds majority vote in the House of Peoples’ Representatives, or by a two-thirds majority vote in the House of the Federation or when one-third of the State Councils of the member States of the Federation, by a majority vote in each Council have supported it, shall be submitted for discussion and decision to the general public and to those whom the amendment of the Constitution concerns.”

According to one legal commentator, the Ethiopian Constitution has been “amended twice in the past twenty years.” Article 98 was “amended so as to change the spirit of concurrent power of taxation into revenue sharing.” Article 103(5) was amended “to extend the period for conducting national population census to more than 10 years.” This commentator cites authority for the proposition that the “Ethiopian Constitution is silent on defining the bodies having the power to initiate constitutional amendments.” The commentator argues “the constitutional framers [] wished to give the [amendment] power to the House of Peoples’ Representatives, House of Federation and State Councils.” The commentator “conclude[s] in Ethiopia, the HPR, the HoF and State Councils have the power to initiate constitutional amendments” and presentation of the final “‘submi[ssion] [of the amendment] to the general public for discussion and decision”. It “is not clear whether it denotes referendum or not.”

The principle of Ockham’s razon should apply here. There is no need to seek out complex and convoluted solutions when direct and constitutionally sound solutions are available. If indeed a referendum is required for ratification of a constitutional amendment under Article 104 in which a direct and universal vote is required, one might as well have the August 2020 election in the middle of the COVID-19 crisis. If the August 2020 election could not be held because of COVID-19, by the same token no referendum on a constitutional amendment could also held.

The bottom line

The bottom line is that elections are created for people. Those who insist on an election in August 2020 believe people are created for elections.

The choice is simple. Saving Ethiopian lives against having an election on a particular date and risk untold numbers of deaths. Elections make sense when people are alive. Those who try to make political hay out of the postponement of the August election have no regard for the lives of the people they claim to protect and represent. They are only interested in grabbing power at all costs. They will continue to run around threatening violence if the election is postponed and claim there will be no legitimate government after September 2020. But they will find out that when push comes to shove, the velvet gloves will be taken off. They may see this as their last opportunity to sneak themselves into power. They will fail in their evil plans because the people of Ethiopia will reject them totally.

Regardless, the alpha and omega constitutional question in the current debate over postponing the August 2019 elections is whether it is possible, given the COVID-19 crisis, to hold a free and fair election, not the mechanical process of electing candidates to office. If an election could be held on the scheduled date but it cannot be free and fair, it will amount to nothing more than an exercise in futility and a gross abuse of the people’s right to democratic self-rule.

To be continued…

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Relevant Constitutional Provisions:

Article 38 (1) (c): “Every Ethiopian national has the right to vote and to be elected at periodic elections to any office at any level of government; elections shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors.”

Article 38 (3): “Elections to positions of responsibility within any of the organizations referred to under sub-Article 2 of this Article shall be conducted in a free and democratic manner.”

Article 5: “The Federal government has the power to declare and to lift national state of emergency and states of emergencies limited to certain parts of the country.”

Article 54 (1): “Article Members of the House of Peoples’ Representatives shall be elected by the People for a term of five years on the basis of universal suffrage and by direct, free and fair elections held by secret ballot.”

55 (8): “The House of Peoples’ Representatives in conformity with Article 93 of the Constitution it shall declare a state of emergency; it shall consider and resolve on a decree of a state of emergency declared by the executive.”

Article 58 (3): “The House of Peoples’ 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.”

Article 60 (1) provides, “With the consent of the House, the Prime Minister may cause the dissolution of the House before the expiry of its term in order to hold new elections.”

Article 60 (3): “If the House is dissolved pursuant to sub-Article 1 or 2 of this Article, new elections shall be held within six months of its dissolution.”

Article 60 (5): “Following the dissolution of the House, the previous governing party or coalition of parties shall continue as a caretaker government. Beyond conducting the day to day affairs of government and organizing new elections, it may not enact new proclamations, regulations or decrees, nor may it repeal or amend any existing law.”

Article 62 (1): “1. The House has the power to interpret the Constitution.”

Article 77 (10): “The Council of Ministers has the power to declare a state of emergency; in doing so, it shall, within the time limit prescribed by the Constitution, submit the proclamation declaring a state of emergency for approval’ by the House of Peoples’ Representatives.”

Article 83 (1): “All constitutional disputes shall be decided by the House of the Federation. 2. The House of the Federation shall, within thirty days of receipt, decide a constitutional dispute submitted to it by the Council of Constitutional Inquiry.”

Article 84 (1): “The Council of Constitutional Inquiry shall have powers to investigate constitutional disputes. Should the Council, upon consideration of the matter, find it necessary to interpret the Constitution, it shall submit its recommendations thereon to the House of the Federation.  (2) 2. Where any Federal or State law is contested as being unconstitutional and such a dispute is submitted to it by any court or interested party, the Council shall consider the matter…

Article 87: “The armed forces shall protect the sovereignty of the country and carry out any responsibilities as may be assigned to them under any state of emergency declared in accordance with the Constitution.”

Article 93: 1. (a) The Council of Ministers of the Federal Government shall have the power to decree a state of emergency should an external invasion, a breakdown of law and order which endangers the constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel, a natural disaster, or an epidemic occur.

  1. (a) If declared when the House of Peoples’ Representatives is in session, the decree shall be submitted to the House within forty-eight hours of its declaration. (b) Subject to the required vote of approval set out in (a) of this sub-Article, the decree declaring a state of emergency when the House of peoples’ Representatives is not in session shall be submitted to it within fifteen days of its adoption.
  2. A state of emergency decreed by the Council of Ministers, if approved by the House of Peoples’ Representatives, can remain in effect up to six months. The House of Peoples’ Representatives may, by a two-thirds majority vote, allow the state of emergency proclamation to be renewed every four months successively
  3. (a) When a state of emergency is declared, the Council of Ministers shall, in accordance with regulations it issues, have all necessary power to protect the country’s peace and sovereignty, and to maintain public security, law and order.

(b) The Council of Ministers shall have the power to suspend such political and democratic rights contained in this Constitution to the extent necessary to avert the conditions that required the declaration of a state of emergency.

(c) In the exercise of its emergency powers the Council of Ministers cannot, however, suspend or limit the rights provided for in Articles 1, 18, 25. and sub Articles 1 and 2 of Article 39 of this Constitution.

The House of Peoples’ Representatives, while declaring a state of emergency, shall simultaneously establish a State of Emergency Inquiry Board, comprising of seven persons to be chosen and assigned by the House from among its members and from legal experts.

  1. The State of Emergency Inquiry Board shall have the following powers and responsibilities:

(a) To make public within one month the names of all individuals arrested on account of the state of emergency together with the reasons for their arrest.

(b) To inspect and follow up that no measure taken during the state of emergency is inhumane.

(c) To recommend to the Prime Minister or to the Council of Ministers corrective measures if it finds any case of inhumane treatment.

(d) To ensure the prosecution of perpetrators of inhumane acts.

(e) To submit its views to the House of Peoples’ Representatives on a request to extend the duration of the state of emergency.

Article 102 (1) (2): “1. There 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. 2. Members of the Board shall be appointed by the House of Peoples’ Representatives upon recommendation of the Prime Minister.”

Article 104: “Any proposal for constitutional amendment, if supported by a two-thirds majority vote in the House of Peoples’ Representatives, or by a two-thirds majority vote in the House of the Federation or when one-third of the State Councils of the member States of the Federation, by a majority vote in each Council have supported it, shall be submitted for discussion and decision to the general public and to those whom the amendment of the Constitution concerns.”

 

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