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Published online by Cambridge University Press: 18 July 2013
The current Ethiopian Constitution suffers from a severe lack of legitimacy. It lacks legitimacy as a result of a constitution-making process that was not inclusive, as well as the subsequent serious lack of integrity and vitality in the constitutional system. Therefore, if the ruling party, which is also the “author” of the constitution, were to lose its hegemonic position, which is predicated on its control of the security and military apparatus, there is a strong likelihood that there would be calls from significant political forces for a new constitution to be adopted. Such calls should not be heeded. Instead of adopting a new constitution, the current constitution's lack of legitimacy should be remedied by comprehensive constitutional reforms that would still maintain the basic architecture and cornerstones of the current constitution.
1 In this context, the word “author” is used rather loosely to refer to the individual or group of individuals whose political power sanctioned the constitutional text into becoming a positive law, rather than the actual drafter of the constitutional text. For an overview of the Imperial Constitutions, see Selassie, B Habte “Constitutional development in Ethiopia” (1966) 10/2Journal of African Law 74.CrossRefGoogle Scholar
2 The PDRE Constitution was authored by the military junta which aspired to give its continued rule some ideological and legal legitimacy by establishing a “Peoples' Democratic Republic”. This constitution was rooted in socialist principles and lasted only four years. For an overview of the PDRE Constitution, see Fisseha-Tsion, M “Highlights of the Constitution of the Peoples' Democratic Republic of Ethiopia (PDRE): A critical review of the main issues” (1988) 14 Review of Socialist Law 129.CrossRefGoogle Scholar
3 The FDRE Constitution is Ethiopia's current constitution. It came into force in 1995 and was authored by the Ethiopian People's Revolutionary Democratic Front, the armed movement that overthrew the military regime and has been in power since 1991. For an overview of the salient features of the FDRE Constitution, see Nahum, FConstitution For a Nation of Nations: The Ethiopian Prospect (1997, The Red Sea Press) at 49–64.Google Scholar
4 See, id at note 3.
5 Fallon, RH “Legitimacy and the constitution” (2005) 118/6Harvard Law Review 1794.Google Scholar
6 Ibid.
7 Id at 1794–95.
8 Kay, RS “The creation of constitutions in Canada and the United States” (1984) 7 Canada-United States Law Journal 118.Google Scholar
9 Fallon “Legitimacy and the constitution”, above at note 5 at 1796–98.
10 Barnett, RE “Constitutional legitimacy” (2003) Columbia Law Review 103 at 114.CrossRefGoogle Scholar
11 Fallon “Legitimacy and the constitution”, above at note 5 at 1795; Kay “The creation of constitutions”, above at note 8 at 118.
12 Fallon, ibid.
13 Id at 1796.
14 Kay “The creation of constitutions”, above at note 8 at 118.
15 Ishiyama, J “Ethnic partisanship in Ethiopia” (2010) 16/3–4Nationalism and Ethnic Politics 290CrossRefGoogle Scholar. This empirical study shows that, although ethnicity does not trump all other considerations, it has considerable political salience in Ethiopia.
16 Lustick, I “Stability in deeply divided societies: Consociationalism versus control” (1979) 31/3World Politics 325 at 325CrossRefGoogle Scholar. See also Choudhry, SConstitutional Design For Divided Societies: Integration or Accommodation? (2008, Oxford University Press) at 5Google Scholar; Choudhry describes divided societies as societies marked by ethnic, religious, cultural or linguistic differences which are politically salient.
17 See H Lerner “The people of the constitution: Constitution-making, legitimacy, identity” (paper presented at the mini-APSA student conference, Department of Political Science, Columbia University, 2004).
18 Choudhry Constitutional Design, above at note 16 at 6.
19 For a discussion of the relationship between the process of making constitutions and their legitimacy, see: Chambers, S “Democracy, popular sovereignty and constitutional legitimacy” (2004) 11/2Constellations 153CrossRefGoogle Scholar; and V Hart “Democratic constitution making” (United States Institute of Peace special report no 107, 2003), available at: <http://www.usip.org/files/resources/sr107.pdf> (last accessed 7 March 2012).
20 For an insightful discussion of the Ethiopian constitution-making process and how the defects in the process have undermined the FDRE Constitution's legitimacy, see Regassa, T “The making and legitimacy of the Ethiopian Constitution: Towards bridging the gap between constitutional design and constitutional practice” (2010) 23/1Afrika Focus 85 at 98–104.CrossRefGoogle Scholar
21 MA Wolde “A critical assessment of institutions, roles and leverage in public policymaking: Ethiopia, 1974–2004” (PhD thesis, University of Stellenbosch, 2005), available at: <http://ir1.sun.ac.za/handle/10019.1/1452?show=full> (last accessed 8 March 2012), at 142–48. For a rather unconvincing account of the process that downplays the dominance of the EPRDF despite admitting its preeminent role, see Eshete, A “The protagonists in constitution making in Ethiopia” in Hydén, G (ed) Constitution-Making and Democratization in Africa (2001, Africa Institute of South Africa) 69 at 69–71.Google Scholar
22 See for example Selassie, AG “Ethiopia: Problems and prospects for democracy” (1992) 1 William and Mary Bill of Rights Journal 212.Google Scholar
23 A Berhe “A political history of the Tigray People's Liberation Front (1975–1991): Revolt, ideology and mobilisation in Ethiopia” (PhD thesis, Amsterdam, 2008) at 331–44.
24 A good way to gauge the popularity of these views is to see the level of support that the Coalition of Unity and Democracy (CUD), a coalition of opposition parties which espoused such views, enjoyed in the 2005 general election. According to the results released by the National Electoral Board of Ethiopia, which are quite controversial since the opposition has claimed there was substantial vote rigging, the CUD won 109 out of the 547 seats which were contested. The proportion of votes obtained by the various parties in the electoral districts where no party challenged the results indicates that the CUD had the support of 21.9% of the electorate. Taking this figure as a baseline and ignoring for now claims that the CUD actually won more seats, it is safe to assert that views which dissent from EPRDF's constitutional vision have a significant following in Ethiopia. See Ishiyama, J “Alternative electoral systems and the 2005 Ethiopian parliamentary election” (2009) 10/4African Studies Quarterly 39 at 45.Google Scholar
25 For an overview of the constitution-making process by the head of the commission which drafted the constitution, see Wedajo, K “The making of the Ethiopian Constitution” in Hydén, G (ed) The Making of the Ethiopian Constitution (Africa Institute of South Africa, 2001) 132.Google Scholar
26 Members of the commission were drawn largely from political parties and the transitional legislative house. Though diverging views were aired in the commission, the EPRDF had a visible dominance. See Wolde “A critical assessment”, above at note 21 at 142–45.
27 See Transitional Period Charter of Ethiopia, available at: <http://www.ldphs.org.za/resources/local-government-database/by-country/ethiopia/peace-agreements/The%20Transitional%20Period%20Charter%20of%20Ethiopia.PDF> (last accessed 5 August 2011).
28 Wolde “A critical assessment”, above at note 21 at 141–47.
29 See Ashenafi, M “Ethiopia: Process of democratization and development” in An-Na'īm, A (ed) Human Rights Under African Constitutions: Realizing the Promise For Ourselves (2003, University of Pennsylvania Press) 29 at 31–33.Google Scholar
30 Vestal, TM “An analysis of the new constitution of Ethiopia and the process of its adoption” (1996) 3/2Northeast African Studies 21 at 26.CrossRefGoogle Scholar
31 Nohlen, D, Krennerich, M and Thibaut, BElections in Africa: A Data handbook (1999, Oxford University Press) at 381.CrossRefGoogle Scholar
32 Young, J “Ethnicity and power in Ethiopia” (1996) 23/70Review of African Political Economy 531 at 536–37.CrossRefGoogle Scholar
33 T Alebachew “When [a] constitution lacks legitimacy in the making: The case of Ethiopia” (unpublished LLM thesis, Addis Ababa University, Graduate Studies, 2011), available at: <http://etd.aau.edu.et/dspace/bitstream/123456789/2769/1/TEGUADDA%20ALEBACHEW.pdf> (last accessed 22 June 2012) at 73–75.
34 See for example the Coalition for Democracy manifesto for the 2005 election, unofficial English translation available at: <http://www.addisvoice.com/wp-content/uploads/2010/03/KINIJIT-MANIFESTO-English.pdf> (last accessed 12 June 2013) at 54–56.
35 Ibid.
36 This accusation was not a mere public denunciation but did in fact take the form of criminal charges pressed against many in the Coalition for Unity and Democracy leadership in the aftermath of the 2005 general election; “outrages against the constitution” was among the charges brought by the prosecutor. See “Ethiopian protest leaders guilty” (11 June 2007) BBC News, available at: <http://news.bbc.co.uk/2/hi/africa/6740929.stm> (last accessed 7 March 2012).
37 This is perhaps a form of earned or derivative legitimacy which Tsegaye defines as “legitimacy that is derived from a consistent application, and so one derived from fidelity to the text (hence derivative legitimacy)”: T Regassa “The making and legitimacy of the Ethiopian Constitution”, above at note 20 at 97.
38 The inverse is also true. That is to say that, as much as congruence between practice and text enhances the legitimacy of a constitution, the legitimacy of a constitution could also enhance the congruence between text and practice. In other words, if the constitution has original legitimacy, it is more likely to be implemented faithfully and as such to have constitutional integrity. This argument is made by Tsegaye in relation to the Ethiopian Constitution. See Regassa, id at 88.
39 International Crisis Group “Ethiopia: Ethnic federalism and its discontents” (Africa Report no 153, 4 September 2009), available at: <http://www.crisisgroup.org/~/media/Files/africa/horn-of-africa/ethiopia-eritrea/Ethiopia%20Ethnic%20Federalism%20and%20Its%20Discontents.ashx> (last accessed 22 June 2012), at 19–23.
40 Gudina, MEthiopia: Competing Ethnic Nationalisms and the Quest for Democracy, 1960–2000 (2003, Shaker Pub) at 146–48.Google Scholar
41 Aalen, LEthnic Federalism in a Dominant Party State: The Ethiopian Experience 1991–2000 (2002, Chr Michelsen Institute, Development Studies and Human Rights)Google Scholar, available at: <http://bora.cmi.no/dspace/bitstream/10202/186/1/Report%202002-2.pdf> (last accessed 27 May 2013), at 53; Herther-Spiro, NB “Can ethnic federalism prevent ‘recourse to rebellion’? A comparative analysis of Ethiopian and Iraqi constitutional structures” (2007) 21/1Emory International Law Review 321 at 337–38.Google Scholar
42 Habtu, A “Multiethnic federalism in Ethiopia: A study of the secession clause in the constitution” (2005) 35/2Publius: The Journal of Federalism 313 at 325.CrossRefGoogle Scholar
43 Teshome, WB “Ethiopian opposition political parties and fronts: Past and present” (2009) 4/1International Journal of Human and Social Sciences 60 at 65.Google Scholar
44 Aalen, L and Tronvoll, K “The end of democracy? Curtailing political and civil rights in Ethiopia” (2009) 36/120Review of African Political Economy 193 at 193.CrossRefGoogle Scholar
45 Abbink, J “The Ethiopian Second Republic and the fragile ‘social contract’” (2009) 44/2Africa Spectrum 3 at 6.Google Scholar
46 T Regassa “The making and legitimacy of the Ethiopian Constitution”, above at note 20 at 133.
47 See (2000) 1 Journal of Constitutional Decisions 1.
48 For a summary of this (Kedija Beshir) case, see Kassa, G “Mechanisms of constitutional control: A preliminary observation of the Ethiopian system” (2007) 20/1–2Afrika Focus 75 at 91–92.CrossRefGoogle Scholar
49 For a summary of this (Benishangul-Gumuz) case, see id at 89–90.
50 Though Assefa Fiseha argues that the “HoF [House of Federation] has over the years evolved as a legitimate body for the settlement of disputes at least as far as issues of high political and constitutional significance are concerned”, examples of such cases of “high political and constitutional significance” decided by the HoF are relatively rare and he could discuss only two such cases (Silete and Benishangul-Gumuz): Fiseha, A “Federalism and the adjudication of constitutional issues: The Ethiopian experience” (2005) 52/1Netherlands International Law Review 1 at 22–28CrossRefGoogle Scholar. The author has learned that the HoF recently decided a case regarding the constitutionality of legislation authorizing the head of the Customs and Inland Revenue Authority to fire employees of the authority suspected of being corrupt and absolutely precluding courts from reviewing the legality of such decisions. See Ashenafi Amare et al v The Ethiopian Revenues and Customs Authority, decision of the Council of Constitutional Inquiry, file no 101/2009, decided on 9 February 2010 (unpublished and on file with the author).
51 Mgbako, C et al. “Silencing the Ethiopian courts: Non-judicial constitutional review and its impact on human rights” (2005) 32 Fordham International Law Journal 259 at 294.Google Scholar
52 See Yeshanew, SA “The justiciability of human rights in the Federal Democratic Republic of Ethiopia” (2008) 8/2African Human Rights Law Journal 273 at 282.Google Scholar
53 The constitution gives to the House of Federation, which is a non-legislative upper house of Parliament, the ultimate power to interpret the constitution and settle constitutional disputes (see art 83(1) of the FDRE Constitution). However, there has been a constant debate as to whether the judiciary retains some residual or inherent power to enforce the constitution. Whatever the correct answer might be doctrinally, in reality the courts have been reluctant to enforce the constitution and their reluctance has contributed to the constitution's lack of vitality. For a sense of the controversy, see in general Tesfaye, Y “Whose power is it anyways: The courts and constitutional interpretation in Ethiopia” (2008) Journal of Ethiopian Law 128Google Scholar; and Regassa, T “Making legal sense of human rights: The judicial role in protecting human rights in Ethiopia” (2009) 3/2Mizan Law Review 288 at 327–29.Google Scholar
54 See for example art 486(a) (“Inciting the public through false rumours”) of the FDRE Criminal Code 2005.
55 See Ross, TJ “A test of democracy: Ethiopia's mass media and freedom of information proclamation” (2010) 114 Penn State Law Review 1047 at 1060–64Google Scholar; and Brems, E “Ethiopia before the United Nations treaty monitoring bodies” (2007) 20/1–2Afrika Focus 49 at 58.CrossRefGoogle Scholar
56 Proclamation no 590/2008. See Ross, ibid.
57 Proclamation no 621/2009. See “New law in Ethiopia puts freedom of association in jeopardy” (9 January 2009) Human Rights House Network, available at: <http://humanrightshouse.org/Articles/9544.html> (last accessed 8 March 2012).
58 Proclamation no 652/2009. See “Analysis of Ethiopia's draft anti-terrorism law” (30 June 2009) Human Rights Watch, available at: <http://www.hrw.org/en/news/2009/06/30/analysis-ethiopia-s-draft-anti-terrorism-law> (last accessed 8 March 2012).
59 Balkin, JM “Original meaning and constitutional redemption” (2007) 24 Constitutional Commentary 427 at 427.Google Scholar
60 See Regassa “The making and legitimacy of the Ethiopian Constitution”, above at note 20. See also T Regassa “Between constitutional design and constitutional practice: The making and legitimacy of constitutions in Ethiopia” (paper presented at the Conference on Constitutionalism and Human Security in the Horn of Africa, Addis Ababa: Inter Africa Group, 2008) at 16–50.
61 Michele, B, Cottrell, J, Ghai, Y and Regan, AConstitution-Making and Reform Options for the Process (2011, Interpeace) at 36.Google Scholar
62 Elster, J “Forces and mechanisms in the constitution-making process” (1995) 45/2Duke Law Journal 364 at 384.CrossRefGoogle Scholar
63 See O'Donnell, GA “Horizontal accountability in new democracies” (1998) 9/3Journal of Democracy 112.CrossRefGoogle Scholar
64 Tesfaye “Whose power is it anyways”, above at note 53.
