Ethiopia: Desperate Times Call for Extraordinary Constitutional Measures (Proclamation 3/2020) (Part I)

By  Alemayehu G. Mariam

Author’s Note: COVID-19 has wreaked havoc on the global health, economic and social system. Two weeks ago, the Ethiopian Parliament passed a law (Proclamation No. 3/2020 “State of Emergency Proclamation Enacted to Counter and Control the Spread of COVID-19 and Mitigate Its Impact) to respond to the looming COVID-19 crisis in Ethiopia. I applaud the Parliament for taking swift action and enacting a narrowly tailored and clearly written proclamation that balances the interests of individual liberty with the necessity of safeguarding public health and safety.

In Part I here, I shall examine the constitutional dimensions of Proclamation No. 3/2020 and some of its key provisions, particularly from the perspective of protecting civil liberty and civil rights during the COVD-19 crisis.

In Part II, I shall argue that the Ethiopian Government must now focus its attention on the postponement of the parliamentary elections scheduled for late August 2020 using constitutional mechanisms. 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 and 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 cries and ultimately  ensure a free and fair election that can withstand international standards that I shall urge the Government of Ethiopia to use constitutional measures at its disposal and formally  postpone the August 2020 election for a reasonable period of time.

An ounce of prevention is worth a pound of cure: Stopping COVID-19 before it stops Ethiopia

COVID-19 has stopped America cold in its economic, social and political tracks.

In less than 6 weeks, nearly 30 million Americans have found themselves unemployed.  Most small businesses (the backbone of the American economy), schools and government offices are shut down and there are no firm plans to reopen them on a date certain.

The mighty United States despite its technological and medical prowess stands helpless, powerless and defenseless before the invisible marauding COVID-19 Army which has taken nearly one million American “prisoners” and killed over 55 thousand. COVID-19 is without a doubt the most formidable terrorist army in America, and indeed the world, has ever seen. The human race today is living in terror looking out for COVID-19 lurking everywhere.

One fact is indisputable. The invisible COVID-19 Army has proven to be the great equalizer. It does not discriminate based on race, color, religion, language national origin, geographic boundaries or even species. It will attack a fearsome tiger, a kitten just as easily as it would young and old Homo sapiens.

The object lesson for Ethiopia in the COVID-19 invasion is the United States of America, “Land of the free and home of the runaway COVID-19.”

But on March 24, 2020, Donald Trump told the American people not to worry about COVID-19. “We have it totally under control. It will go away in April with the heat.”

On April 24, a million Americans are infected and over 55 thousand dead.

On April 10, Trump predicted total “US death toll from Covid-19 could reach 60,000.” How many Americans will die by the end of summer? Only God knows!

On April 23, Trump recommended Americans inject disinfectants, poisonous to humans,  as a possible COVID-19 treatment.

The ancient Greek physician Hippocrates, often referred to as the “Father of Medicine” and founder of the Hippocratic School of Medicine is credited with the aphorism, “Desperate times call for desperate measures.”

That is literally true with COVID-19. In Aphorisms, Hippocrates wrote, “For extreme diseases, extreme methods of cure, as to restriction, are most suitable.”

There is no more extreme disease facing Ethiopia today than COVID-19.

It has no cure. There is no vaccine. There is a global shortage of test kits and personal protective equipment. The human race has no effective defense against COVID-19. How the human race got caught with its pants down facing COVID-19 is something I will never understand.

The fact is COVID-19 is spreading throughout the globe like wildfire.

Extreme methods to deal with COVID-19 crisis necessary and mandatory.

The Ethiopian Government did the right thing by declaring a COVID-19 state of emergency in a timely manner

If COVID-19 can wreak havoc on the medical and economic system of the mighty, mighty United States, I shudder to think what it can do to Ethiopia.

There is no way Ethiopia can win the war with COVID-19 in a hand-to-hand combat, literally. Ethiopians may have a fighting chance if they meticulously and diligently wash their hands, unfailingly practice social distancing and employ other preventive measures using personal protection equipment.

The level of public compliance with such measures is woefully inadequate. Ethiopian government officials, public figures, journalists, health professionals and others are seen daily on television lamenting the lack of public compliance with recommended mitigation measures and expressing frustration over what appears to be inexplicable public indifference to the potentially disastrous consequences of COVID-19.

The facts are the facts.

Ethiopia will be overwhelmed if COVID-19 spreads as it has in America and Europe. If the medical infrastructure in America and Europe is unable to handle the rising tide of COVID-19 cases, what chance could Ethiopia possibly have in dealing with such a crisis?

In a historical context, when Ethiopia had 70 million people in 2002, the ratio of physician to population was 1 per every 36,000 people.

In 2004, Randall Tobias, President Bush’s global AIDS coordinator, said “there were more Ethiopian-trained doctors practicing in Chicago than in Ethiopia.”

In 2017, according to the World Bank, Ethiopia had 0.1 physicians per 1000 population (1 physician per 10,000 persons). Ethiopia had 0.8 nurses per 1,000 population in 2017.

In 2015, Ethiopia had hospital beds at a ratio of 0.3 per 1,000 people.

How many ventilators and respirators does Ethiopia have today?

Ethiopia has over 100 million people, but only 54 respirators out of 450 available have been reserved for coronavirus patients. The Ministry of Health would like to acquire 1,500 more. The government has ordered a thousand devices from China. But global demand is strong. Addis Ababa will have to settle for 250 by April.

The lack of supply of personal protective equipment (PPE) in Ethiopia, not unlike most places in the world, is frightening. Diaspora Ethiopians (including the Ethiopian Diaspora Trust Fund which committed USD$1 million and has an ongoing COVID-19 fundraising campaign), have been working fast and furiously to secure specialized clothing, equipment, gloves, gowns/aprons, goggles/face shields, facemasks and respirators for health care workers and vulnerable populations to help prevent the spread of the virus.

As of today, Ethiopia has 123 reported COVID-19 cases and 3 deaths. Personally, I attribute that to divine intervention for it has been written, “Ethiopia shall soon stretch her hands to God.”

Unlike Italy, Spain and other countries, Ethiopia has not yet gone all out creating a national cordon sanitaire preventing travel in and out of hamlets, towns and cities. There is no lock down of millions of people.

The Ethiopian government has adopted a reasonable policy that allows movement of people by balancing the interests of work, health and societal concerns. Houses of faith have voluntarily cooperated in keeping their members at home or maintaining social distance in places of worship.

But the low COVID-19 infection and death rates should not lead to complacency.

Neither Ethiopia nor Africa are out of the woods. The UN is predicting COVID-19 could lay Africa to waste.

By enacting Proclamation 3/2020, Ethiopia has gone the distance in COVID-19 mitigation under the principle of the rule of law.

Contrast Ethiopia with Hungary. In March 2020, Hungary drafted a law which allowed the “government to rule by decree during the state of emergency caused by the coronavirus pandemic risks staying in place indefinitely, the opposition has warned.”

Contrast Ethiopia with Italy. The Italian government enacted a series of stringent emergency measures to deal with the COVID-19 crisis. People were forbidden to gather in public including sports and other events. Only people with permits could travel. Cruise ships were forbidden to dock in Italian ports. People violating the emergency orders could be fined up to Euro 3,000 per offense (Ethiopian Birr 108,000).

A number of African countries have also put strict emergency measures to deal with the COVID-19 crisis.

The Ethiopian government has avoided harsh measures in its COVID-19 mitigation campaign. It has closed schools and heavily promoted social distancing and effective hygienic practices. It has effectively suspended the operations of Ethiopia Airlines, recognized as the best airline service in Africa. It has closed land borders and released thousands of prisoners to ease overcrowding and sprayed main streets in the capital with disinfectant.

PM Abiy Ahmed has declined calls to impose a total lockdown arguing it is “unrealistic” because “many citizens who don’t have homes” and “even those who have homes have to make ends meet daily.”

What is in Proclamation 3/2020?

I am impressed by the intentionality, thoughtfulness and reasonable care taken in drafting Proclamation 3/2020.

I shall focus on a number of aspects which I believe make Proclamation 3/2020 an effective policy tool in the fight against COVID-19.

First, the Proclamation is narrowly and thoughtfully drafted to address the evolving COVID-19 crises. There is not even a hint of political advantage in the language of the Proclamation nor do any of its provision lend themselves as a basis for expanded or extra-constitutional exercise of political power by the government. To me, that is one of the critical elements of the rule of law. Laws and policies should be written in such a way to address the need at hand or a specific objective without affecting other rights or opening the possibility of encroaching on other rights.

Second, the Proclamation is fully couched in the Ethiopian Constitution. The legal framework for the Proclamation are 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 (1a) (“The Council of Ministers of the Federal Government shall have the power to decree a state of emergency… [in the event of] … , a natural disaster, or an epidemic…”) There is no obfuscation of constitutional authority and the government’s claims, assertions and exercise of authority are open to public and judicial scrutiny. To me, that is another important element of the rule of law. The government must never exercise power or authority that is not granted in the supreme law of the land which is enshrined in Article 9 of the Ethiopian Constitution.

Third, the Proclamation is based on clear, indisputable and demonstrable factual findings. The government has demonstrated beyond a shadow of doubt that ordinary governmental systems and capabilities are woefully inadequate in meeting the rapid spread of COVID-19 or proactively deal with the highly likely humanitarian, social, economic and political damage that could be caused by the pandemic. To me, this is a critical element of the rule of law. Any law that could impact civil liberties and civil rights must be based on demonstrable and challengeable facts, which the Proclamation lays out in its preamble. So, there are different standards that apply to extraordinary legislation (state of emergency declaration) and ordinary legislation which could be based on claims and assertions of facts subject to legislative notice. I am glad the Proclamation observes these basic distinctions.

Fourth, the Proclamation takes special care not to encroach or infringe on individual liberties and civil rights. Under Article 4 of the Proclamation, the scope of governmental action is narrowly defined. The Council of Ministers are required to “stipulate details of the suspension of rights and measures adopted to counter and mitigate   the humanitarian, social, economic and political damage that could be caused by the pandemic.”

This is exceedingly important in maintaining and institutionalizing what I shall call the “golden age of human rights” in Ethiopia today. Under Article 4, the government cannot use the Proclamation to amass amorphous powers to limit and curtain the rights of citizens. The Proclamation imposes the burden of proof on the government to demonstrate with compelling evidence why a certain right must be suspended and the nexus to a particular mitigation effort. For instance, under the Proclamation the government may not order a lockdown unless it can show that the lockdown measure is supported by evidence of rapid spread of COVID-19, the lack of preventive and mitigation capacity, sustained escalation in COVID-19 deaths, etc.

Fifth, the implementation of the Proclamation does not lend itself to a discretionary exercise of power by one individual. The Proclamation calls for action by the Council of Ministers or a Ministerial Committee to be established by them. That is very important as a rule of law issue for at least two reasons: 1) The Council is required to take leadership and collective responsibility for actions it takes under the Proclamation, and 2) because COVID-19 is unpredictable, the Council will be able to respond to dynamic situations and act in real time. These are important elements in monitoring implementation as the Council have great flexibility to respond to constantly changing circumstances, anticipate new ones and make decisions proactively based on up to date data and information.

Sixth, the Proclamation actively promotes education, public awareness and other reasonable means of non-coercive compliance. Only in extraordinary circumstances does it authorize federal and regional law enforcement agencies to “use proportionate force to enforce the suspension of rights and measures.” I have a special appreciation for this provision. First, it respects individual autonomy and dignity. It assumes that people with the right information will act in their own enlightened self-interest. In other words, people will act rationally to protect their interests and in doing so protect the interests of society. Second, it mandates the restrained use of force. That is important because I do not believe in the use of violence to convince people to pursue their enlightened self-interest. Only in the most dire circumstances when public health and safety is threatened should coercive measures be used to obtain compliance. That is why I like the operative phrase “proportionate force” in the Proclamation. Proportionality is a fundamental principle in law. Let the punishment fit the crime.

Seventh, the Proclamation is transparent and provides for maximum accountability of government officials. It conforms to Article 12 of the Ethiopian Constitution which mandates, “the conduct of affairs of government shall be transparent” and requires “any public official or an elected representative [to be] accountable for any failure in official duties.” Under the Proclamation, it is the duty of the Prime Minister and the Attorney General to “communicate to the public the conditions pertaining to suspension of rights and measures through media outlets that are widely accessible to the public.” Simply stated, the buck stops with the Prime Minister and the Attorney General.

Eight, the Proclamation requires “all commercial, community and public media with a local, regional or national reach have an obligation to broadcast free of charge the public notifications, explanations and messages” concerning COVID-19. I appreciate this provision because it requires of the private media to engage in the most important aspects of the war on COVID-19. The best way to get information to the public is through the mass media, especially radio and television. I have no problems in compelling the private media to do the government’s work as long as the task is clear and narrowly defined. In the Proclamation, the private media is required to disseminate “notifications, explanations and messages” concerning COVID-19. The Proclamation does not allow for any other use of the private media by the government.

Ninth, Proclamation 3/2020 upholds fundamental principles of the rule of law and should serve as model legislation for the rest of Africa. It is constitutionally rooted and has various accountability measures built into it. It provides for procedural and legal transparency. It avoids arbitrariness and respects civil liberties to the maximum level in a state of emergency.

Tenth, Individual responsibility. Individual responsibility. Individual responsibility. I do not believe in the “nanny state” idea. The Ethiopian government simply does not have the resources to provide personal protective equipment, testing services and life support technologies to respond to widespread infections. For that matter, the American federal government has failed woefully.  The Ethiopian government has its role to play in the protection of health and public safety. But the lion’s share of responsibility for prevention and mitigation must be borne by the individual. To be sure, Proclamation 3/2020 is as far as I would like to see government legislative intervention in the protection of public health and management of the COVID-19 crises in Ethiopia. I would like to see a whole lot more NGOs, members of the advocacy and activist communities, faith leaders and institutions, business leaders and organizations, political parties and similar institutions taking a commanding role in the war against COVID-19 by raising public awareness and providing actionable information to the public, and especially discrediting unsafe and unproven remedies for COVID-19. Anyone who believes the Ethiopian government can single-handedly  defeat the COVID-19 plague without the massive support, participation and action by each individual citizen is at best delusional. I argue this point precisely because I have seen countless news reports documenting public indifference and ignorance bordering on arrogance about hand washing, social distancing and other similar practices.

On a personal point…   

I wish to deeply thank all diaspora Ethiopians who have come to the aid of Ethiopia in this time of extreme need by donating and arranging delivery of personal protective equipment. I am equally thankful to all in Ethiopia who have generously donated money, property and other resources in the fight against COVID-19.

I must confess that over the past decade and half relentlessly fighting for human rights and the rule of law in Ethiopia, I never thought Ethiopia would prove to be a shining example of the rule of law. I doubt there is anyone who has consistently, tenaciously and relentlessly litigated the cause of Ethiopian human rights and the rule of law in Ethiopia more than myself. This is not intended be self-congratulatory, only a statement of fact.

I have written countless commentaries on “state of emergency” declarations by the previous regime. That regime chose to implement its declarations by a “command post.” That way, the mastermind criminals responsible for human rights violations thought they could evade legal accountability.

It is refreshing and a very big deal for me to see the Prime Minister and the Attorney General, not some faceless, remorseless and ruthless command post, standing up and taking full responsibility for the implementation of Proclamation 3/2020.

I thank PM Abiy Ahmed, the Council of Ministers and the Ethiopian Parliament for enacting a proclamation that meets the highest standards of international scrutiny. I am proud of them all.

Now, Prime Minister Abiy Ahmed and his government must rise and address the issue of postponement of the August elections with the same constitutional tour de force of Proclamation 3/2020.

To be continued… The constitutional bases for the postponement of the August 2020 election.

  

 

1 COMMENT

  1. These are hard times for the entire world not only Ethiopia so it’s important to show solidarity with other human beings outside of our living room too. Let’s us give a one minute prayer and praise to the Almighty that she may have mercy on us and forgive our bad deeds that brought upon us this dark cloud of carnivorous plague. Are these despairing moments? Yes, of course. But do they require “Extraordinary Constitutional Measures” to suspend our civil liberties? NO, NO, NO folks. That’s unacceptable. You are 1000% wrong and way off the mark to suggest anything like that. What kind of lawyer would say such a thing. The fact remains what we have done in Ethiopia is to take temporary measures not “Extraordinary Constitutional Measures.” Please check with our government before you decide to babble and jabber on our behalf next time. Now, please understand that NO one person has the “Extraordinary” authority under the Ethiopian constitution. The Prime Minister is not above the law. To argue otherwise is like telling Ethiopians to inject themselves with disinfectants. If that’s what you are suggesting by channeling Alan Morton Dershowitz, Trump’s impeachment lawyer who blathered that the president can do whatever he chooses like an emperor. Luckily, in Ethiopia that’s not going to fly because we got rid of the monarchy long ago for a good reason. This so called parliament you’re talking about is the same rubber-stamp that won 100% of the vote five years ago. And please forgive to remind you that pastor Abiy ain’t no king. So be humble and beg the Ethiopian people for understanding for the unexpected emergency COVID situation and that elections will be held as soon as humanly and Godly possible when these dark cloud of diseases clears. They will understand. But please, for the sake of Ethiopia, avoid the fake legal mumbo-jumbo to justify high-level illegal activity. If you go down that rabbit hole, based on Ethiopia’s history, Ethiopians will bring an abrupt end to your honeymoon and who knows what comes after that? Real ethno extremist? God for bid. It’s time to be humble, professor. It’s corona time. Time to be with GOD and family. Time to listen. May God protect our blessed Ethiopia and humanity. Amen.

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