Understanding, Interpreting and Applying the Ethiopian Constitution During the Covid-19 Pandemic (Part I)

Alemayehu G. Mariam

Author’s Note: On May 18, 2020, I had an opportunity to make a virtual appearance  (in Amharic, begins at minute 36:17- 1:22) before the Ethiopian Constitutional Inquiry Council and share my views on issues related to the postponement of the August 2020 national and regional elections because of the Covid-19 crisis. My purpose in appearing before the Council was to share my knowledge, insights and experience in American constitutional law in addressing the issues before the Council.  I am not a stranger to the Ethiopian Constitution. I have written numerous commentaries on it over the past decade and half.

To have an informed conversation about contemporary constitutional issues, it is important for all Ethiopians, especially the so-called elites dabbling and meddling in politics, to have basic familiarity with our constitutional history and the great historical constitutions of the world. With due respect to all African countries, I wish to emphasize that Ethiopia is not a creation of European colonial domination though I am first to acknowledge their machinations and designs to subjugate Ethiopia. Ethiopians have a rich millennia-old civilization and a strong tradition of rule of law and centuries-old system of laws, institutions and norms.

The belief in the supremacy and primacy of the rule of law is so deep in Ethiopia, a proverb says the divine power of the law  could stop not only humans but also a flooding river: “Be hig amlak sibal enkwan sew  weraj wonz yiqomal.” A critical understanding of our constitutional history will help us gain insight into our current problems, avoid repeating mistakes and chart a clear course for the future.

In successive short commentaries to appear in the coming days, I shall expand on my testimony and answers before the Council and expound on constitutional interpretation. In Part I, I offer an overview based on primary constitutional sources. I invite my readers to examine them to broaden their understanding.

Part I — Understanding constitutionalism and constitutional law

Most people who talk about constitutions in America or Ethiopia have barely read their respective constitutions. Studies show, “Americans know literally nothing about the Constitution.” I suspect that may be equally true for Ethiopians. It is not only the average citizens but also most of the elites who suffer from constitutional literacy or a deficit of constitutional knowledge and understanding in both countries. As a result, extremist elements and the willfully ignorant in America and Ethiopia are often heard blathering uninformed and reckless public pronouncements which subvert constitutional governance into a game of fully loaded Russian roulette.

Generically, a constitution is a legal document that sets out the basic principles and organization of government, specifies the scope and limitations of governmental powers and provides for a scheme of civil liberties. Beyond these basic attributes, there are many different types of constitutions: written and unwritten, republican and monarchical, presidential and parliamentary, federal and unitary, liberal-democratic and socialist and so on. Some constitutions are written in “majestic generalities” and others like ordinary legislation with minute details. Some like the U.S. constitution are short (4,500 words) and others like India’s have exceedingly long (145 thousand words). Some constitutions are interpreted by courts (e.g. judicial review in the U.S.) and a legislative body (e.g. Ethiopia) in others. Some constitutions are driven by ideals of liberty and equality and others by narrow ideology. Most constitutions are secular but there are some theocratic constitutions founded on religious precepts.

In most constitutions, the phrase “supreme law of the land” is used to signify that the constitution is the foundation and ultimate source of legal authority in the society. All government legislation, regulations and rules must conform to the constitution and conflicting laws are deemed invalid. All institutions and leaders are sworn to uphold and defend the constitution. Constitutions are drafted to endure for generations and reflect the consensus of diverse and competing interests in society. They are amended only by extraordinary means because they anchor the foundations of society.

Understanding the constitution of a given society goes beyond textual or semantic analysis of the words. It requires a broader understanding of the society’s history, political struggles and challenges, the diversity of views and perspectives as well as the shared expectations and aspirations of the people.

Constitutional origins

Most constitutions of the world share similar values, aspirations and even substantive textual language. That is because constitution drafting is an eclectic process and draws from diverse historical and contemporary sources.

Most modern constitutions could be traced to the legal systems of classical antiquity. The Constitution of the Roman Republic consisted of informal and unwritten ideas about separation of powers, checks and balances, vetoes, term limits, impeachments. That constitution created legislative chambers and determined rights of citizenship. The Athenian Constitution (Areopagite constitution) consisting of two parts, described the constitutional and legal codes on citizenship, magistrates, and the courts, among other things. Many modern constitutions trace their roots to classical antiquity and modern Western constitutions after the Treaty of Westphalia in 1648 establishing the modern state system.

The Magna Carta (Great Charter) (1215) is a unique constitutional document unlike any other preceding it. It was drafted by the ruled and imposed on the rulers. It was a bold effort to subjugate rulers to the rule of law and aimed to create a binding political contract between subjects and kings. (See my commentary “A Magna Carta for Ethiopia”.)  The unwritten Manden Charter (1235) of the great African kingdom of Mali is touted by some as being the first constitutional document to recognize human rights. It aims to promote social peace in diversity, the inviolability of the human being, education, the integrity of the motherland, food security, the abolition of slavery, and freedom of expression and trade. The English “Bill of Rights” (1689), the French “Declaration of the Rights of Man and of the Citizen” (1789) and the U.S. Constitution of 1787 with its amendments are inspirational sources for the majority of world constitutions.

Ethiopia’s constitutional history

Most African countries, which gained their independence after 1960, did not have constitutional history before colonialism. Many post-independence African constitutions were drafted with the heavy influence of their former colonial masters. Other African countries which considered themselves “revolutionary” opted to follow the constitutional path of the communist-bloc countries.

Uniquely, Ethiopia has a significant constitutional history dating back to the Middle Ages. The Fetha Nagast (Law of the Kings), compiled around 1240 AD, was Ethiopia’s constitution until a modern one was drafted in 1931. The first part of the Fetha Negast deals with ecclesiastical matters and church hierarchy. The second part covers a variety of secular matters including liberty, slavery, partnership, lease, property rights and other similar things.

The 1931 Constitution replaced the Fetha Negast and represents the first modern constitution of  Ethiopia. That constitution deals with succession to the throne, prerogatives of the emperor, rights recognized by the emperor, deliberative chambers of the empire, jurisdiction of courts and functions of ministers.

The 1955 Revised Constitution of Ethiopia consisting of 131 articles was a radical departure from previous conceptions of government and royal authority. It incorporated ideas about separation of powers between three branches of government. However, the king still retained ultimate power including appointment of ministers, senators and judges. Interestingly, Chapter III of that Constitution (“Rights and Duties of the People) could be described as a virtual carbon copy of the American Bill of Rights and other amendments to the U.S. Constitution:

1987 Constitution of Ethiopia, drafted by the military Derg socialist regime, consisted of 119 articles. It created a “National Shengo” (assembly) as the highest organ of state power with members were elected to five-year terms. The president elected by the National Shengo along with ministers appointed by same exercised executive powers. That constitution mimicked constitutions of the communist bloc countries of the time with the ruling party exercising monopoly power in the name of the working people and peasanty.

The current 1995 Constitution consisting  of 106 articles provides for a parliamentary federal government of nine ethnically-based regions. It creates a dual legislative body of the House of Peoples’ Representatives and the House of Federation and a ceremonial presidency. This constitution has some interesting provisions. Article 13 specifies that these rights and freedoms will be interpreted according to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international instruments adopted by Ethiopia. The document further guarantees that all Ethiopian languages will enjoy equal state recognition, although Amharic is specified as the working language of the federal government. Under Chapter III “HUMAN RIGHTS” are listed the following liberties which virtually replicate the American Bill of Rights.

What a constitution is not  

In the current discussion and debate over the constitutional authority to postpone the August 2020 national and regional election because of COVID-19, I am amused by the lack of substantive knowledge, shallow understanding of constitutional law and dogmatism of those who proclaim, “After September 30, 2020, there is no government in Ethiopia. It is a free for all. Anyone can establish their own governments.”

The choice is not between a duly established constitutional order and the anarchy of the mob presided over by those thirsty for power. The choice is between a constitutional government that can protect liberty the in terrorem rule of the mob. A wise American jurist writing about American civil liberties warned against converting the constitution into a suicide pact of total anarchy.

Part II- Constitutional interpretation…

 

9 COMMENTS

  1. Mayor Takele Uma is such a disciplined Mayor , all of the Addis Ababa residents are lucky to have him as their Mayor .

    The Addis Ababa residents should show their gratitude to Mayor Takele Uma every chance they get so he doesn’t leave Addis Ababa , because good Mayors are hard to find and keeping a good Mayor is a challenge too.

    After seeing what a good job Mayor Takele Uma is doing for Addis Ababa, it is highly likely cities in the Oromia region do want him to become their Mayor after the next election is held so all of the Addis Ababa city residents need to do whatever they can to keep Mayor Takele Uma in Addis Ababa to convince him to stay in Addis Ababa after the next election is held without him deciding to leave Addis Ababa for another city in Oromia region.

  2. Time Bomb በአንቀፆቹ ውስጥ የቀበረ ህገመንግስት ይሄን ያክል ቀን መነታረክ ራሱ አስገራሚ ነው። Apartheid Laws.
    አማራ ያልተወከለበት ህገመንግስት !
    በዚህ የተፃፈበትን ቀለምና ወረቀት እንኳን ያህል ዋጋ ለሌለውና ለሚሊዮኖች መፈናቀልና ለሺህዎች ሞት ምክንያት ለሆነ ተራና Time Bomb በአንቀፆቹ ውስጥ የቀበረ ህገመንግስት ይሄን ያክል ቀን መነታረክ ራሱ አስገራሚ ነው። 85 በመቶው ህዝቧ ከድህነት ወለል በታች የሚኖር ህዝብ እያላት ለየአንዳንዱ የካቢኔ አባሏ የ200 ሺህ ብር ስማርት ፎንና ታብሌት የምትገዛ አገር በእውኑ ታስገርማለች።
    የሳምሰንግ ኩባንያ ዓመታዊ ገቢ ከ173 ቢሊዮን ዶላር በላይ ደርሷል። ዛሬ የኢትዮጵያን ዓመታዊ የኤክስፖርት ገቢ ስንመለከተው 3 ቢሊዮን ዶላር እንኳን መድረስ አልቻለም። ኢትዮጵያን ከደቡብ ኮሪያ ጋር ማነፃፀር ይቅርና ኢትዮጵያን ከአንዱ የደቡብ ኮሪያ ኩባንያ ጋር ማነፃፀር ራሱ የጥንቸልና የዝሆን ንፅፅር ያህል ሆኖ በሚታይበት አገር ስለኢኮኖሚ እድገት እርግፍ አድርገው ትተው ጭልፊቶችን ለማስመረጥ ላይ አገሪቱ ቢዚ ሆናለች።
    ጭልፊት ፖለቲከኛ ስለቀጣዩ ምርጫ ሲያስብ፣ የበሰለ ፖለቲከኛ ስለቀጣዩ ትውልድ ያስባል፡፡
    አሁንም መፍትሄው ካለምንም ንትርክ ምርጫውን አራዝሞ ህገመንግስቱን መቀየር ነው።
    አፄ ኃይለ ሥላሴ ሕገ መንግሥታቸውን ሦስት ጊዜ አሻሽለዋል፡፡ የአሜሪካ ሕገ መንግሥት 27 ጊዜ፣ የህንድ 122 ጊዜ፣ የስዊስ 80 ጊዜ፣ የጀርመን 50 ጊዜ ተሻሽለዋል፡፡ በፌዴራል አስተዳደር የሚስተዳደሩ አገሮች የፌዴራል አስተዳደር ሕጎቻቸውን ያሻሻሉበትን ጊዜ መቁጠር ያታክታል፡፡ ብልፅግና ከሩብ ክፍለ ዘመን በኋላ ሕገ መንግሥቱንና የፌዴራል አስተዳደር ሕጎቹን ለማሻሻል የሚቸገርበት ምንም ምክንያት የለም፡፡ ይሄን ተራና መርዛማ ህገመንግስት ቀይሮ የአገሪቱን ችግር ለአንድየና ለመጨረሻ ጊዜ መቋጨቱ አማራጭ የሌለው መፍትሄ ነው::

    /time-bomb-በአንቀፆቹ-ውስጥ-የቀበረ-ህገመንግስት/

  3. “Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”
    ― Abraham Lincoln

    As an attorney steeped in U.S. constitution where the Supreme Court is the sole guardian and interpreter of the Constitution naturally I take with a grain of salt any political interpretations of a constitution. But generally speaking it was refreshing to see the “Constitutional Inquiry ” even though the only thing that stood out positively to people on Facebook was the lone female presenters who made the best legally grounded argument and the dynamic chair Meaza Ashenafi president of the supreme court. It’s a tricky business political interpretations of a constitution (politricks as some call it) in Ethiopia given the “highly combustible , toxic, divisive, culture of politics (ethnicism, tribalism, fake intellectualism, rise of petty crimes, kidnaping of young students, burning of churches and mosques, harassing of journalists, etc) adds fuel to the fire . As they say old and divisive habits die hard, but what’s the reference to “elite dabbling in politics,” about? Or is that part of the definition of Medemer that we all missed? If so, where is it mentioned in the book? For the record and the benefit of the public ‘Elite’ basically means the best, crème de la crème, A-list, new flower, beautiful people, a select group that is superior in terms of ability or qualities to the rest of a group or society such as the Ethiopian runners””and Ethiopian Americans graduates of the elite Ivy League schools in the U.S.: Stanford, Columbia, Harvard, Yale and Princeton, etc. The good news is that lucky you the “elite” don’t like punching down, which would be ugly if they did. Just the thought it itself brings to mind the proverbial expression “whistling past the graveyard,” which means to proceed ignoring an upcoming hazard, hoping for a good  outcome. It means to enter a situation with little or no understanding of the possible consequences. That’s is not to be confused, however, with “whistling in the dark” (colloquial) to make a show of bravery despite one’s fears; to put on a brave front; (idiomatic, US) to speak of something despite having little knowledge of it. Nor it it to be associated with “whistling in the wind ( Britain, idiomatic) to attempt something that is futile; to say something that is not heeded.” It has been said that the Constitution is not a mere lawyers document. In fact in a true democracy the Constitution belongs to the people, elite or otherwise, where everyone has the right to participate, or (“dabble”) if you will, in politics. Abiy is my brother and we dabble in the same vision for Ethiopia as well as the world. The question is do I believe like Abiy does that Ethiopians also have the right to love their country, not their government? The problem with this coronavirus situation is that it’s an enemy you couldn’t put your finger on. It’s sad that time may have changed but the TPLF mentality remains a wolf in sheep’s clothing as we see clearly. The pressing question is does Abiy really share that view? There is no public evidence that suggests he does. To the contrary all his comments thus far signal that in today’s Ethiopia or diaspora there is nothing wrong with being educated, rich and successful. Either way, let me impart with you a letter to my beloved country men and women. Dear Ethiopia: “The strength of the Constitution lies entirely in the determination of each citizen to defend it. We the people are the rightful masters our PM, parliament and the judges. We are more than entitled to POINT FOUR FINGERS AT the men who invert the Constitution in order to pervert it for personal politricks. Finally, as to “understanding, interpreting the Ethiopian Constitution” the rights of all people ought to be effectively guarded for true liberty to shine under the law of the motherland. I too am dogmatically attached to the Constitution in every clause, syllable, and letter. To PUT IT IN OTHER WAY The meaning of the Constitution should be fixed and known [to avoid this type of “interpretation” in the future] The legitimate meanings of the Constitution can only be derived from the text itself not from that our habitually pontifical mindset.

  4. Is true that Abiy is considering appointing Birtukan Mideksa the Temporary head of state starting in October for 6 months until election takes place? is that constitutional or just a compromise with the opposition parties? Can the president do it or will she be illegal too? interesting things are happening. COVID, You’re something else you crazy virus. Some say you’re a blessing in disguise FOR Ethiopia as you gave OUR PEOPLE a break from THEIR daily bread of hatered AND ETHNIC politics. i WISH YOU COULD ALSO STOP KILLING PEOPLE. Amen.

  5. Selam, its me again. i JUST WANTED to correct my english: Is it true that Abiy is considering appointing Birtukan Mideksa the Temporary head of state starting in October for 6 months until election takes place? is that constitutional or just a compromise with the opposition parties? Can the president do it or will she be illegal too? interesting things are happening. COVID, You’re something else you crazy virus. Some say you’re a blessing in disguise FOR Ethiopia as you gave OUR PEOPLE a break from THEIR daily bread of hatered AND ETHNIC politics. i WISH YOU COULD ALSO STOP KILLING PEOPLE. Amen.

  6. Alula A. Yirgu

    Please let us Ethiopians know where we can find the Ethiopian Constitution to read in languages of our mother tongues or in the Ethiopian national language.

  7. I am sorry but I find it very disappointing that we live in the USA where no one is allowed to change an election day but we give advise to do so in Ethiopia? Doesn’t Ethiopia have its own court system to make that choice? I have read much more informative articles on the subject from other Ethiopians that TADIAS magazine compiled. I will google it and send the link later. It’s a blessing to see so many new perspectives flourishing out there. Plus let’s stop this apartheid style nonesense of further dividing and categorizing fellow Ethiopians as if we don’t have enough of those divisions already. When are we going to end the practice of dividing our people. I wish I was an elite. When did being educated, smart and gainfully employed became a bad thing? Weygood. Our problem is that we have too many inferiors and politicians dabbling in our social and civic life. This is a case in point. From my point view that’s the elephant in z room.

  8. Nebil,

    Obviously you can find an Amharic version of the Ethiopian Constitution in Ethiopia. If that’s what your questions is. It seems a bit critic.

  9. Nebil,

    BTW (By the way) my copy has Amharic, Afaan Oromoo and English in one collection, which I am fluent in all so I have mine especially printed as a gift. But as a person in the Diaspora English is my preferred working language as it should be. Why not? In Ethiopia, everyone seem to have their own national language. No? (that’s a whole different issue for another day). My philosophy is that speak whatever language you want to speak unless you are a politician formally appointed by parliament to represent Ethiopia in a foreign country (or claiming to represent) in which case you must use the national language. The rest of us are free men and women living our own lives while enjoying our art and profession without Mini-Me politicians bothering us. If others got a problem with that then let them deal with their own demon. Don’t forget that all Ethiopians outside of Ethiopia are citizens of the world. Like you I am a free man with universal rights.

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