20 Years Down the Road

A few days ago, the Ethiopian Peoples’ Revolutionary Democratic Front (EPRDF) celebrated its 23rd anniversary of overthrowing the Derg regime.

The constitutional order established under the watch of the EPRDF will celebrate its 20th year in a few months time. While EPRDF is telling the miracle stories that have happened to Ethiopia since 1991, citizens are reflecting on the merits and demerits of the EPRDF rule and the constitutional order, writes Solomon Goshu.

Whatever its form may be, a true constitution will deal with basic issues like how various agencies are organized what power is entrusted to those agencies and in what manner such power is to be exercised. Constitutions are designed to establish the rules of a fair political game and entrench constitutional ordinances in the form of fundamental restrictions and obligations on those exercising power.

Constitution has come to serve as an instrument for curbing the powers of government within the defined fields with a view to secure freedom and security. But the actual practice (particularly in most African countries) indicates that whoever controls the state, invariably controls those interests and would be in a position to determine the critical parameters for social action as well as the authoritative allocation of values. Is it any different in Ethiopia?

The 1995 Federal Democratic Republic of Ethiopia (FDRE) Constitution dedicates one-third of its provisions to articulating a robust catalogue of human rights, encompassing “civil and political,” “economic, social and cultural” and “group” rights. The emphasis on human rights is reflected in the fact that the constitution conditions the success of its socio-political objectives on the full respect and protection of human rights. It also declares that international instruments ratified by Ethiopia become an integral part of the law of the land. The human rights provisions of the Constitution must be interpreted in line with the principles recognized in international human rights instruments adopted by Ethiopia.

Many wonder if these appealing provisions from the text of the Constitution have helped the state and its citizens to change for good. While the EPRDF is praised for the attention given and results achieved for the rights of development and self-determination, it is very much criticized for failing to enforce constitutional provisions guaranteeing the right of access to justice, right to association, and right to freedom of expression.

The EPRDF denies the criticism that it gives high priority to development to the extent of affecting other equally important rights recognized and protected under the constitution mainly authored by itself. Even when it admits the to weaknesses and failures in implementation, the Front justifies it by explaining the fact that Ethiopia is still ‘a transition democracy.’ “How long will it take for the Ethiopian democracy to be matured and consolidated?” is a question many ask. Even the most optimist citizens ask: “Where are we in our efforts to walk out of the transition?” The right to development

The Ethiopian Government insists that it is doing its best to ensure development and democracy simultaneously. It explains that development and democratic objectives can be attained through the coordination and participation of its citizens.

It further states that an accelerated and sustainable growth that ensures equitable wealth distribution and builds a development-based democratic order is achieved. The government has also announced that it has made maximum efforts to attain and sustain the development goals by respecting, protecting and progressively fulfilling the individual and group rights of citizens intrinsically with development activities.

Reservations on the government development are not directed at the material wealth. Rather critics have stated their frustration on the rights-based development efforts of EPRDF. Aberra Degefa is a Constitutional Law lecturer and researcher at Addis Ababa University Law School.

Noting that the FDRE Constitution gives the guideline on development activities by clearly stating that community consent and participation is a requirement, Aberra indicates that, in practice, EPRDF is implementing a top-down development approach. He cites land allocation as an example and points out the fact that public interest criteria in terms of environmental pollution and the specific benefits the investment affords to the public is often neglected.

Habtamu Ayalew, Head of Public Relations of the opposition party Unity for Democracy and Justice (UDJ,) argues that even if the EPRDF builds basic infrastructures and has achieved economic growth that cannot be denied by anyone, its rights-based development approach is questionable. “There is corruption and human rights abuse in these development activities. EPRDF is controlling the economic base of the state in the name of development. In the absence of substantial contribution from the private sector, and with lack of respecting individual rights, the development cannot be sustainable,” Habtamu told The Reporter. The right to self-determination

One of the revolutionary outcomes of the EPRDF is its dedication towards the right to self-determination. Andreas Esheteacute, in his widely quoted research entitled, ‘Federalism: New Frontiers in Ethiopian Politics,’ outlines the bold position of the EPRDF in upholding a self-determination right around the country’s nations and nationalities when the rest of Africa is going for the pursuit of political unity at the expense of cultural plurality.

While commenting on the experience of Ethiopian federalism after two decades, Andreas notes that two important phenomena complicate the effort to appraise the successes and failures of the federal experience: the dominance of the center over the regions in economic life the status of the EPRDF as the dominant party in federal and in most regional political life. “Regional states were dependent on the federal state for their entire capital budget and more than half of their recurrent budget. Can member states effectively exercise their constitutional rights to self government without fiscal autonomy?” Andreas asks.

Abera also shares Andreas’ concerns. He argues that while regions and sub-regional localities do not have sufficient financial resources and depend on the federal government, they will not manage their own affairs.

The right to access to justice:

The government claims that remarkable success has been registered in accelerating the decision-making process in the justice sector. According to government reports, a Court Reform Programme and plan has been prepared to ensure the independence, effectiveness, efficiency, accessibility, transparency, accountability and all-inclusiveness of the courts of law and is already being implemented.

Police stations have been set up in urban and rural areas down to the lowest administration level and are serving the public the Federal Police have opened criminal investigation sectors in Addis Ababa and Dire Dawa the Ministry of Justice has active offices in all the sub-cities of Addis Ababa prosecutors have been assigned in every police criminal investigation center the justice bureaus of all the regional states have offices at regional, zonal and woreda levels, and in some cases at the sub-Woreda stage.

Through the application of Real Time Dispatch, particularly in simple and medium criminal offenses, in which complete evidence is available, fast investigation, litigation and sentencing have been achieved thereby contributing to the effectiveness and accessibility of the legal system the efficiency of the justice system has been improved through the implementation of Community Based Policing in which the community works hand in hand with the police in crime prevention.

With the utilization of modern videoconference technology, circuit courts and ‘plasma courts’ the accessibility of the courts has been enhanced and traditional reconciliation systems have been organized in a bid to implement Alternative Dispute Resolution. Similarly, the Ministry of Justice is in the process of drafting a proclamation on out-of-court conflict resolution mechanisms.

Appreciating the recent efforts of the government to improve the justice sector, many still voice their concern on the way the government is handling the sector.

In his research entitled ‘Access to Constitutional Justice in Ethiopia,’ Adem Kassie (LLD,) a lecturer at the University of Pretoria observes a design problem contributing to the weak enforcement of access to justice.

Although the constitution vests all federal judicial powers in an independent federal judiciary, it reserves the power of constitutional adjudication to the House of Federation and the Council of Constitutional Inquiry.

Thus, Adem argues, the role of regular courts in the constitutional adjudication process is largely limited to referring constitutional issues to the Council. “Under Article 62, 83 and 84 of the Constitution, whenever a constitutional issue arises in judicial proceedings, courts must state the proceeding before them and refer the constitutional matter to the Council.

If the Council rules that there is indeed a constitutional issue, it forwards its recommendations to the HoF for a final decision. If the Council rules that there is no constitutional issue involved, it refers the matter back to the court that referred the constitutional issue.

The constitutional adjudication system is the only possible avenue to challenge laws and policies and other administrative decisions based on constitutional standards. Constitutional adjudication is the primary, if not the sole, institutional safeguard to ensure compliance with constitutional requirements. However, access to constitutional justice in Ethiopia has been a major challenge, and the constitutional adjudication system has not played much of a role in constraining government power,” Adem states.

Adem further notes that despite its enormous potential, the constitutional justice system in Ethiopia has largely been invisible. He contends that actual disputes on constitutional issues are often discussed in political and educational forums without any final resolution. “Very few, if any, of the most intriguing constitutional disputes have reached the forum established to authoritatively and finally resolve such disputes.

For example, some recently enacted laws, such as the Electoral Law, Anti-Terrorism Law, the CSO Law, have been criticized for allegedly restricting and violating constitutional standards yet, none of them has so far been challenged as unconstitutional. In particular, the constitutional adjudication system in Ethiopia has not been able to actively engage in the adjudication of constitutional rights. Consequently, there have been very few successful constitutional cases,” Adem says.

Adem indicates that almost all constitutional cases have been dismissed on procedural grounds and lack of need to interpret the Constitution. The Council has rejected constitutional claims relating, among others, to the right to bail, suspension of rights during emergencies, and jurisdictional ouster clauses. The Council has so far referred for final determination by the House of Federation only four cases.

There have only been three successful constitutional challenges so far – one relating to language requirements to stand for elections, another relating to the subjection of a woman without her consent to the jurisdiction of religious courts, and the third relating to the right to appeal. Although many of the cases challenged the constitutionality of laws, only one case has resulted in the invalidation of a law as unconstitutional. Simply stated, despite the adoption of potentially unconstitutional laws, decisions and other measures, the number of constitutional challenges has been significantly low.

The right to association and freedom of expression:

As opposed to widely believed criticism on the EPRDF of violating the right to association and freedom of expression, it claims that the government is working in conformity with the constitutional provisions guaranteeing these rights.

The EPRDF further states that every person has the right to freedom of association for any legal purpose. Thus, citizens, in strict adherence to the law, and on the bases of: politics, gender, age, profession, trade, development, charity, special needs and diverse matters have formed associations of their choice.

These social formations include political organizations micro and small-scale development enterprises mass based and cooperative associations like farmers’ cooperatives, housing associations, consumers and saving and credit cooperatives trade unions, women’s associations, youth associations, elders associations, association of persons with disabilities children parliaments, various professional associations and others at the Federal, Regional States and City Administration levels.

The government has also indicated that it has taken various administrative measures to ensure effective fulfillment of citizens’ constitutional right of thought, opinion and expression, and freedom of information to create multi-faceted mass media capable to contribute to the development process to internalize government transparency and accountability and to aance building of democracy.

However, since 2006, the EPRDF announced that it would pursue ‘dominant party democracy,’ critics explain that the system at work seems to confine political competition to take place only to confirm the ruling party in power. Different EPRDF documents also indicate that the front wants to remain in power until Ethiopia has achieved sustained economic growth and emerged out of poverty. Until such a time, according to the critics, the dominant party will go on to elections to protect the development project from the influence of competitors.

Habtamu argues that the EPRDF wants others to respect the constitution while it has frequently violated it. He further states that the main problem of EPRDF is related with ideological hegemony. “The constitutional recognition and protection for the right to association is sufficient. The problem is that of enforcement. Even those who respect the law are not working their job properly because they have a different idea from EPRDF,” Habtamu says.

Mushe Semu, the former President of the Ethiopian Democratic Party (EDP,) an opposition party, points out that at the time when the constitution was drafted, even when accepting EPRDF’s claim that popular participation was there, the consciousness level of the public was too weak.

“Using this opportunity the EPRDF inserts its programs in the Constitution. g contender political parties were not there. Still, I believe that the Constitution holds the thinking of liberal democracy. After that, even in the presence of so many loopholes, the opposition parties performed well. Even though both EPRDF and the public have not provided significant support for their development, they have done enough. The fact that the opposition parties questions on the Constitution have started to be questions of the academics is a testimony to that fact,” Mushe explains.

The EPRDF as an enforcer and subject:

Are there universaltranscendent standards of law and justice that apply to all societies? Documents such as the Universal Declaration of Human Rights (UDHR), International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) have established certain transcendent standards of law and justice that apply to all societies such as the duty: not to discriminate on the basis of race or color, the guarantee of personal liberty, the prohibition of torture, the right to equality before the law, the right to effective legal remedies, the right to impartial tribunals, the right to privacy, the right to own property, and the right to periodic and genuine universal and equal election. Should laws be adapted to the need of the people they are meant to serve (mirror theory?) How would that go with the fundamental requirements, if there are any?

Leaders of the EPRDF are proud of their achievements in contextualizing the experiences of other countries and international standards to fit to the specific situations of Ethiopian society. They argue that transplanting principles, laws, and institutions will not benefit the country unless they are tailored to the special needs of that society.

They further assert that the issue of human rights is not any different in that aspect. Mitiku Mekonnen, Director of Human Rights Research and Resource Center at the Ethiopian Human Rights Commission, argues that limitations in human rights should be appreciated in the context of the existing ‘margin of appreciations’ in the particular state. Realizing that civil and political rights by their nature are directly related with the conduct of government, Mitiku states that criticism on the performance of government on these rights is normal.

However, he further says, taking into consideration the fact that deep understanding of these rights is lacking both by the government and the citizens due to a minimum exposures in enjoying and exercising the rights in the long history of the country, weaknesses on the application may be related with the consciousness level of government agents’ and the society.

“Our understanding on the limitations, on when the exercise of these rights will contradict with national security and public interest, on which countries experience and which international standard will be applicable in the Ethiopian context is controversial and weak.

The lifestyles of the society, the culture of the country, and the other circumstances reflecting their judgment on rights and wrongs are very important to contextualize. Effective rights protection is only possible when we create a society and government officials that are sensitive to rights violation. Concern and special recognition to human rights has been given by the government recently.

It is only through the National Human Rights Action Plan that the lower level officials come to talk and understand the meaning of human rights,” Mitiku says. For Adem Kassie being different will not assure a proper path towards development and democracy. In his research entitled ‘A Constitution without a Guardian: Is the Ethiopian Constitution Really Supreme?’

Adem shows how the Ethiopian Constitution’s failure in establishing checks and balances prevent the adoption of measures that promote constitutional restraints on government power. “The Constitution does not establish any independent forum beyond the control of the winning political group where individuals and groups outside government can challenge the state.

Since there are no institutional structures that can ensure that the constitutional rules of the game actually limit the exercise of power, the declaration of supremacy by the Ethiopian Constitution is an empty promise.

The Ethiopian Constitution leaves the discretion to comply with the limits to whichever political group wins the elections. As a result, the political group that is in power, not the Constitution, is supreme.

In the absence of institutional veto points or players, politicians could easily violate or manipulate constitutional limits. In the absence of any institutional blockade against the adoption of measures that contravene the Constitution, compliance with constitutional limits on government power entirely depends on the generous will of the governing political group.

Given the absence of institutional veto points to ensure the supremacy of the Constitution, the Ethiopian Constitution is a constitution without a guardian,” concludes Adem. B.O. Nwabueze, in his classic piece entitled ‘Constitutionalism in the Emergent States’ observes that constitutional safeguards do not provide in themselves complete and indefensible security, but the inclusion of such safeguards in a constitution does make the way of the transgressor, of the tyrant more difficult.

Similar to Nwabueze, Adem, Habtamu and Mushe accept the fact that the Constitution even short of being fully enforced matters. Adem shows that its relevance is reflected in the fact that the government almost always attempts to justify its decisions under the Constitution and actively repulses allegations of violations of the Constitution.

He adds that the Constitution also provides the critical standards for opposition groups, CSOs, the media, academics, individuals and even international actors based on how to evaluate the actions and inactions of the government.

Montaigne said that changes in government are to be feared unless the benefit is certain. He had the view that all great mutations shake and disorder a state. He said that good does not necessarily succeed evil, another evil may succeed and a worse one. Things surrounding the Ethiopian constitutional order may not be working as we want them to be. Changing the government of EPRDF is one choice to consider, but it is not the only choice. Making the EPRDF conduct business within the confines of the Constitution is another viable option.

Source : The Reporter

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