This EDP Wire was first published in a slightly different version at Verfassungsblog.de. You can find the version here.
Due to the Covid-19 related restrictions, the National Electoral Board of Ethiopia (NEBE) announced on March 31 that it is impossible to hold an election on August 30, 2020. This created a constitutional impasse as the constitution requires holding an election at least one month before the end of the House of Representatives’ term which is the final week of the Ethiopian month of Meskerem (October 3-10). To resolve the deadlock, some opposition parties and the government put forward different solutions. This article examines the proposed solutions through the principle of normative jurisprudence.[1]
Background
The anticipated Ethiopian general election was scheduled to be held on August 30, 2020, one month before the current House of Representatives’ term of office ends. However, on March 31, 2020, the National Electoral Board of Ethiopia (NEBE) announced that due to Covid-19 related restrictions, it was unable to implement planned pre-election activities such as training the election officers, voter registration and education, and dissemination of electoral materials, therefore making it impossible to hold the election on the scheduled date. On April 30, 2020, the House of Representatives approved the postponement of the election. Subsequently, the government and some opposition parties proposed a variety of different solutions on how to deal with this constitutional deadlock, some of them entailing the risk of endangering the fragile democratic shift the country has been facing for the last two years.
The Ethiopian government put forward four possible solutions: (1) to dissolve the House of Representatives (as stated under Article 60 of the Federal Democratic Republic of Ethiopia (FDRE) Constitution); (2) to govern the country under a state of emergency until the election is held (based on Article 93 of the constitution); (3) to amend the constitution (based on Article 104 and Article 105 (2) of the constitution); and (4) to ask the House of Federation to interpret the constitution. However, some of the opposition parties argued that these four solutions are unconstitutional. In their opinion, Article 60, proposing the dissolution of the House of Representatives, could only be applied within the term of office of the current government. Hence, the government cannot dissolve the House of Representatives and hold election within six months, as specified in Article 60 (3). Furthermore, they dismiss the second solution, declaring a state of emergency under Article 93, as it does not give power to the government to declare a state of emergency for holding an election after its term of office ends. Some opposition parties also disagreed with the solution (3), which suggests amending the constitution, as they argue that it will give unlimited power to the current government, which controls all seats in the House of Representatives. Regarding solution (4), interpreting the constitution, some opposition parties argued that there is no need to ask for the interpretation of the constitution because if you are literate and can read, it is clear to understand the articles. Therefore, some opposition parties argued that the only way to resolve the constitutional impasse is through a political solution, thereby arguing in favor of the establishment of a transitional government, stating that the current government would lose its legitimacy in the end of October 10, 2020.
Three Concepts of Jurisprudence
In contrast to the layman’s general understanding of the law, the concept of jurisprudence is considered to be the eye of law. The concept guides lawyers and judges to have the necessary skills to not only think critically and creatively in order to interpret and practice law, but to explain the reasoning behind laws and their role. The main purpose of jurisprudence is to analyze the origin of law, it’s development, and its contribution to society. It provides different methods to know, explain and understand what law is. There are three types of jurisprudence which are (1) natural law jurisprudence, (2) analytical jurisprudence, and (3) normative jurisprudence. The natural law jurisprudence argues that man-made laws should be in accordance with the principles of natural law. It compares man-made law with natural law to decide whether it is a “good or bad” law. Analytical jurisprudence deals with the present position of the law of the land and is not concerned with identifying whether it is a “good or bad” law. To understand a law, it focuses on its logical structure, the meanings and uses of its concepts, and the formal terms and modes of its operation. It is descriptive. To answer what a law is and to interpret a law, normative jurisprudence focuses on the goal or purpose of the law. It tries to understand the moral basis of the law and what the law ought to be. For instance, analytical jurisprudence attempts to answer “what is right? And what does it mean to have a right to something?” While normative jurisprudence investigates “the moral foundations of rights and examines ‘what rights do we actually have?’ or ‘ought to have’”
As the postponement of the election represents a constitutional issue, the proposed solutions should be interpreted accordingly and with the help of the principles of jurisprudence rather than on the basis of political ambitions. This article examines the proposed solutions through normative jurisprudence. It first examines the objective of the 1995 constitution and follows with an investigation of the proposed solutions by some opposition parties as well as the government.
Analysis of the 1995 Constitution and the Proposed Solutions Based on the Concept of Normative Jurisprudence
a. The Objective of the 1995 Constitution Concerning Legitimate Government and Election
The 1995 constitution is the supreme law of the country: “Any law, customary practice or a decision of an organ of state or a public official which contravenes this Constitution shall be of no effect” (FDRE Constitution, Article 9 (1)). In Ethiopia, the highest state authority is vested in the people, and these people exercise authority through elections (Article 8). Consequently, the Ethiopian constitution gives power to the people to elect the government every five years. This principle is derived from the 1948 Universal Declaration of Human Rights, Article 21 (3), which states that “the will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures”. A government that assumes power in any other way will be considered illegitimate according to Article 9 (3) of the constitution. Therefore, the solution for the constitutional impasse must be searched based on the aspiration of the established rules of the game – the 1995 constitution of Ethiopia – not on the political aspirations of the players, i.e. the politicians.
When looking for a solution for the current constitutional impasse, one needs to start by analyzing why the country needs to hold elections. Elections are needed for the people to express their “sovereign power […] through their representatives elected in accordance with this Constitution…” (Article 8 (3)). Therefore, the primary purpose of the constitution is to put in place an effective and legitimate government. Moreover, one needs to take note that an election is not a one-day activity. NEBE still needs to train electoral officers, register voters, and disseminate electoral documents. Against this normative jurisprudence interpretation of the constitution regarding a legitimate government and election, let’s evaluate the proposed options by some opposition parties and the government.
b. The Opposition Parties’ Proposal: Transitional Government
One of the proposed options by some opposition parties is to establish a transitional government after the official term of the current government ends (solution 5). According to this proposal, the transitional government is supposed to be established among the current registered political parties who should “deliberate, debate and bargain to reach […] an agreement that serves during the interim period“. From the current political atmosphere, it is easy to predict that it is impossible to reach such a kind of agreement among the existing ethnic-based political parties which frequently use the argument of fear of domination to gain support from their respective ethnic groups. For instance, who would be the leader of such a transitional government? Would the transitional government abide by the constitution? Who would be in charge of the military in case there is a threat against the sovereignty of Ethiopia? How could the political parties work together when some of them believe that there is no shared history among the different ethnic groups in Ethiopia? Such unanswered questions would open a box of Pandora that has the potential to create a power vacuum in the country and overturn the democratization process, which only started two years ago. Furthermore, the constitution allows a transitional government/caretaker government only in the case that the Council of Ministers of a previous coalition is dissolved due to the loss of its majority in the House, thereby making it necessary to hold a new election (Article 60 (2)(5)). Thus, this option is not only unconstitutional, but also has a tendency to put in place an ineffective government.
c. The Governmental Proposal: Dissolution, State of Emergency, Amendment, and Interpretation
The first proposed solution to dissolve the parliament was put forward by the State Minister of the Attorney General’s Office. According to Article 60, the parliament can be dissolved for two reasons: (1) to hold an election before the expiry of the parliamentary term, or (2) if the Council of Ministers of a previous coalition is dissolved because of the loss of its majority in the House. For the current situation, the second reason is not applicable. Regarding the first reason, the current term of office ends on September 30, 2020, and it is impossible to predict how long the pandemic will last. Hence, it is impossible to dissolve the parliament and hold an election before the expiry of its terms.
When analyzing the option of amending the constitution (see proposal (3) by the government mentioned above), it is possible to do so based on Article 104 and Article 105 (2) of the constitution. Article 104, Initiation of Amendments, states that
“[a]ny 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.”
Amendments which are not related with fundamental human rights and freedoms (chapter 3 of the FDRE constitution) could only be accepted when approved by a two-thirds majority vote of the House of Peoples’ Representatives and the House of the Federation in a joint session, and a two-thirds majority vote of the State Councils of the member States of the Federation (Article 105 (2)).
Instead of giving open access to an extension of the office term, it is possible to add an article which allows the government to postpone the election as well as the term office of the parliament under the state of emergency solely in the case of a pandemic recognized by World Health Organization (WHO). The prolonged term of office should last a maximum of six months after the WHO declared the end of the threat, thereby providing enough time to hold an election and transfer power to the newly elected government. During such an extension the government’s power to change and adopt laws should be limited. Nevertheless, there is a possibility of the government to hold power for more than a year as this pandemic is novel to the world and no one knows when it will end. Nevertheless, I still believe that such an amendment would accomplish the objectives of the constitution by preventing the government to extend its term office without any valid reason, avoiding a possible political vacuum, and putting in place an effective and legitimate government. However, due to the time limitation, it is not feasible to amend the constitution for the current impasse, as it is necessary to submit such a proposal for “discussion and decision to the general public as well as to those whom the amendment of the constitution concerns” (FDRE Constitution, 1995, Article 104).
The two remaining solutions are proposal (2): governing the country under a state of emergency, and proposal (4): asking the House of Federation for interpretation. Under Article 93 (1), it is possible to declare a state of emergency in case there is an epidemic. However, there are no clear provisions in the constitution when both a pandemic and an election period coincide at the same time. In this case, it is possible for the government to ask the House of Federation for interpretation the constitution based on Article 62 (1) of the constitution. Based on normative jurisprudence, the House of Federation should consider the objective of the constitution to interpret the constitution and provide a constitutional based solution. It is obvious that the constitution drafters did not predict a pandemic and an election period to occur at the same time. From the standpoint of the normative jurisprudence principle, the term of office of the current government should be extended under the state of emergency until the end of the pandemic plus six months, as it is highly unlikely that the government will be able to hold an election during these times. Once the threat of Covid-19 subsides, NEBE will probably need six months to resume the activities of preparing and holding an election, as it stopped implementing the activities six months before the planned election on August 30, 2020. These two options together will put in place an effective government during the pandemic until a transfer of power to an elected government as the constitution envisioned is possible.
Therefore, the constitutional impasse should be resolved rather through interpreting the constitution based on the concept of jurisprudence than putting forward solutions that are not based on the constitution. In an attempt that might lead to such a solution, on May 5, 2020 the House of Peoples’ Representatives decided to ask the House of the Federation for the interpretation of the constitution. What could happen to the postponed election after the interpretation remains to be determined in time.
[1] The author would like to thank Dr. Sonja John, Rebecca Wagner, and Nora Berger-Kern for their comments on the first draft of this article.