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Constitutional back sliding in Ethiopia?

Constitutional  backsliding in Ethiopia?

By Tesfai Dirar

07/05/19

1. Introduction

This paper examines whether there have been symptoms of constitutional retrogression in Ethiopia since April 2, 2018. It draws on two of the five indicators of constitutional retrogression that Huq and Ginsberg (2018) identified. These are centralization and politicization of executive power and shrinking of the public sphere. April 2, 2018 is important because that was the date Ethiopia’s current Prime Minister took power (BBC, 2018a). His predecessor resigned on February 15, 2018, amidst popular unrest in the country (BBC, 2018b).

This brief study asks whether there has been a centralization and political of executive power and a shrinking of the public sphere in Ethiopia since April 2018 using a functionalist method of comparative law (Hirschl, 2005; Michaels, 2006). Functionalism is effective in this study for three reasons. First, functionalism is a controlled comparison. This study focuses on Ethiopiabut explores other countries. Second, functionalism is inference oriented. This study wants to establish cause and effect. Third, functionalism relies on data analysis to explain the dynamic of change. This study is interested in explaining the change in Ethiopia over the last year. It tests the theoretical foundation of constitutional retrogression using primary and secondary data.

The paper is organized into five parts. The second section explores the key tenets of the current Ethiopian constitution. It explains the three pillars of this constitution and their relation to each other. The third section asks whether the current government has centralized and politicized its executive power. It does this by comparing the Ethiopian case with other countries. The fourth section inquires whether the current Ethiopian government has shrunk the public sphere over the past year. The study will extract other countries’ experience for comparative purpose. The final section will summarize the key arguments, underscores limitations, draw lessons, and impart useful recommendations.

2. Background: pillars of the Ethiopian Constitution

The current Ethiopian polity has three intertwined pillars: democracy, ethnicity, and federalism. It is based on the Ethiopian Constitution ratified on December 8, 1994 (WIPO, 1994). The democratic pillar merits no further explanation as it has become a universally accepted norm instilled all constitutions-despite contemporary retreats (FH, 2019). But the ethnic and federal dimensions of the Ethiopian policy and their interlink deserves an explanation.

The constitutional Preamble identifies Ethiopia’s ethnic groups as the founding members of the Ethiopian polity. It declares the ethnic groups have volunteered to establish an economic union. It states the ethnic groups are “convinced…to live as one economic community in order to create sustainable and mutually supportive conditions” (WIPO, 2019, p. 1).

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The constitution also allows ethnic groups to reserve autonomy over their internal political and social affairs. Art 39 of the constitution gives these ethnic groups unlimited right, including cessation (Biru, 2013). It is based on the principle of ethnicity as a building block the constitution adopted a federal system. The federal system creates two governments: state and federal. This arrangement provides the ethnic groups an institutional mechanism to form their own governments. It also enables them to retain joint economic, defense and diplomatic policies at the federal level.

The federal and democratic pillars of the Ethiopian constitution are apparent in many constitutions. But the ethnic pillar makes it an outlier. Sixty-three percent of the world’s population lives in democratic and semi-democratic countries (FH, 2019). Further, forty percent of the global population resides in 25 federal states. These include great powers like the US, India, and Germany (FoF, 2019). Ethiopia is the only country in the world that formulated and ratified ethnic federalism. So, it is impossible to assess its practical utility by comparing it with similar ethnic federal systems. The remaining alternative left is juxtaposing the Ethiopian model with other forms of federal systems. Ethiopia’s eccentricity has inspired countless critiques. Some argue it is a divide and rule technique which an elite from a minority ethnic group devised (Allo, 2017; Ehlrich, 1999). Others portray it as a recipe for ethnic conflict (Baylis, 2004; Beken, 2016).

It is beyond the scope of this paper to assess the merits of Ethiopia’s constitution.Afterall, most Ethiopians are rural dwellers adhering to customary and religious rules (Biru, 2013). This study is interested in examining whether there is constitutional retrogression in Ethiopia. It accepts the constitution as given and inquires whether the current government has violated it or not. The section below discusses whether the current government in Ethiopia has politicized and centralized its executive power.

3. Politicization and Centralization of the Executive Power

State bureaucracy is one of the areas where constitutional retrogression takes effect (Huq and Ginsberg, 2018). Max Weber (1947) pioneered the concept of bureaucracy. Weber notes traditional societies retain a patrimonial (kin) and extra-patrimonial (loyalists) systems to staff their administration (Weber, 1947). He writes: “all governmental authority and the corresponding economic rights tend to be treated as privately appropriated economic advantages” (1947, p.352). By contrast, in modern societies, Weber notes:“obedience is owed to the legally established impersonal order [and applies to the office holder] …only within the scope of the authority of the office” (Weber, 1947, p. 328).

Most African governments retain neo-patrimonial regimes. This is a hybrid system created by charismatic leaders who import the form (organizational structure) without the essence (impersonal legal authority) of modern bureaucracies (Mkandawire, 2015). That is why many African leaders tend to treat their official position within their governments as their personal property (Clapham, 1985).

Neo-patrimonial regimes are also prevalent in many countries like Hungary and Turkey (Huq and Ginsberg, 2018). Hungary’s Fidetz Party reorganized the Media Council, the Budget Counsel, the National Bank, the Elections Commission, and the Ombudsman Office. The party fired all of the officials that led these institutions and installed political loyalists. The Turkish President also launched judicial reform that allows him more control over the judiciary. Erdogan “purged or detained 9,000 police officers, 21,000 private school teachers, 10,000 soldiers, 2,745 judges, 1,570 university deans, and 21,700 Ministry of Education officials” (Huq and Ginsberg, 2018, p. 24).

The current prime minister has not been in power as long asOrban and Erdogan have been. He only came to power last year. The prime minister expressed a desire to change Ethiopia’s existing parliamentary constitution into a presidential system (Soliman, 2019). This comment checksLevitsky’s and Ziblatt’s (2019)first litmus test for identifying authoritarian behavior. The authors note that authoritarians tend to display a weak commitment to democratic rules of the game. They ask: “do they [the leaders] reject the Constitution or express a willingness to violate it?” (Levitsky and Ziblatt, 2019. P. 23). The answer seems “Yes!” because Art. 1 of the Ethiopian constitution stipulates: “this Constitution establishes a Federal and Democratic State structure” (WIPO, 1994, p.2). Entertaining presidential system amounts to challenging this article.

The prime minister quickly reshuffled the bureaucracy as soon as he took power. This is constitutional because Art 74 gives him an authority to appoint high civil officials. Some of the changes seemed progressive. For example, half of his new cabinet members were women (BBC, 2018). He also appointed three women to head the state (president), the supreme court and the electoral commission. His initiative towards gender parity is commendable. But the political loyalties of his nominees remain questionable. For example, the current chairwomen of the electoral commission used to be a prominent politician who run for election back in 2005 (BBC, 2018a). She was imprisoned, pardoned, and migrated to the US for graduate studies. So, it is difficult to expect her to be completely impartial while supervising the 2020 elections.

Further, the way the Prime Minister replaced incumbent officials seems politically motivated. For example, Art 74 (7) of the Constitution authorizes the prime minister to nominate the President and Vice President of the Supreme Court. But it doesn’t state he can fire incumbent president of the supreme court. Nobody knows the reason why the Prime Minister fired the previous President of the Supreme Court. Art .79 (4) of the constitution state judges can’t be removed from office before retirement. The exceptions to this rule are grave incompetence, disciplinary problem, a grave illness, gross incompetence, or decision by the Judicial Administration.

The purge of other government officials also appears mysterious. This violates Art 12 (1) of the constitution which stipulates “the conduct of the government shall be transparent”. The government fired the head of intelligence (Fisher and Gebrewahd, 2019). It did not arrest him but jailed his deputy (Maasho, 2018). The heads of the information/signals intelligence and state-owned metal engineering corporation (METEC) resigned. But the government arrested the head of METEC alongside his brother on corruption charges (Maasho, 2018a).

The deputy director of the information security agency and more than 120 members of the Ethiopian intelligence and security community were among those arrested (Meseret, 2018; HRW, 2019; Reuters, 2019). However, most of the intelligence officials have never been tried to date. This delay violates Art 37 on the right of access to justice and Art 19 on the right of persons arrested. Instead, the government broadcasted a documentary on national television on December 2018 condemning former officials for corruption and human rights violation. The Attorney General also fired five officials following this documentary.  These acts violate Art 20 (3) which presumes all accused persons innocent until proven guilty (HRW, 2019).

The incessant purge of public officials trickled down to the regional bureaucracy. Art 51 (14) authorizes the federal government to deploy troops in state administration “to arrest a deteriorating security situation within the requesting State when its authorities are unable to control it” (WIPO, 1994, p. 18). But the Prime Minister ordered regional presidents that failed to contain violence to resign (CG, 2019). The constitution doesn’t authorize the Prime Minister to ask regional administrators to resign. Among those who resigned was the President of Ethiopia’s Southern National, Nationalities and Peoples region (SNNP) (Xinhuanet, 2018). This person was the prime minister’s top contender for the position when the ruling coalition party vetted candidates to replace the former prime minister. The Somali regional president didn’t have the chance to resign. He was imprisoned (Fisher and Gebrewahd, 2019). Meanwhile, the prime minister promoted two former regional presidents to take key federal positions: defense and foreign affairs. These individuals were the prime minister’s closest political allies who played an instrumental role in catapulting him to power.

The federal government sent federal troops to depose the Somali regional government (Fisher and Gebrewahd, 2019). This act violates Art 62 (9) of the constitution which gives the House of Federation the power to order the Federal government to intervene in regional states to protect the constitution. The federal government has also challenged the House of Federation’s authority to mediate internal border disputes. Art 62 (6) gives the House of Federation a responsibility to “find solutions to disputes or misunderstanding that may arise between states” (WIPO, 1994, p. 24). Instead of permitting the House to do its job, the government submitted a proposal to form a National Reconciliation, Boundary, and Identity Commission to the House of Representatives. The parliament approved it via majority vote. However, representatives from the Tigrai state and the regional state of Tigrai rejected this commission as unconstitutional (Abiye, 2018).

In conclusion, the current Ethiopian government took key measures to centralize and politicize its executive power over the past year. It violated multiple constitutional articles while doing this. It arrested multiple individuals, denied them a trial, and undermined the judicial process by employing propaganda against the accused. The federal government also purged heads of regional states to eliminate rivals while promoting allies to key positions. The government challenged the House of Federation by intervening in regional affairs using force and proclamations. These neo-patrimonial traits are alarming symptoms of constitutional retrogression in Ethiopia.

4. Shrinking of the Public Sphere

The shrinking of the public sphere is an effective constitutional retrogression strategy that governments employ (Huq and Ginsberg, 2018). This strategy has an end, ways, and means. Its end goal is marginalizing or discrediting dissenting minorities from the political arena. Its primary way is limiting or distorting information. Curbing information sustains ongoing repression. Distorting it turns the majority constituency against the dissenting few. Its means include detention, using divisive languages, and “a mix of civil and criminal legislation, administrative rules requiring ex-ante registration, and ex-post penalties through tax and regulatory enforcement” (Huq and Ginsberg, 2018, p.135).

Huq and Ginsberg (2018) show that the shrinking of the public sphere is a very common strategy worldwide. In Venezuela, Chavez formulated two media laws in 2000 and 2014. The first law gave him a punitive power. Chavez could suspend media license. The second law empowers him to control the content and conduit of media information. Poland's PiS party adopted similar regulations in 2015. It also required all media outlets to join a board that the government controls. In Turkey, Erdogan closed 100 media organizations within two months in 2016. Hungary expanded the scope of repression to universities. Russia enacted libel law and nonprofit regulations to control suspected journalists and NGOs. China and Israel require NGOs to disclose their source of funding.

There are some instances showing the current Ethiopian government shrinking the public sphere. There was a big public rally commemorating the first month of the prime minister’s election in the capital. A grenade exploded amidst the crowd during that day. A few days later the prime minister said “daytime hyenas” orchestrated it (Pilling, 2019). Many interpreted this divisive language to identify, harass, and attack disgruntled members of a minority ethnic group. The government also broadcasted a prominent general of that minority community in handcuffs. The accused person didn’t resist arrest and is presumed innocent until proven guilty. However, the government media broadcasted a documentary entitled “the ordeal of justice” that evening. The alleged victims of human rights abuse inferred their captors were dominated by speakers of the Tigrean ethnic group (FBC, 2018).

Following the documentary, the Prime Minister issued a statement on national TV. It compared corrupt officials with cancer cells that must be cut off before they take over the body (Woldie, 2018). After these incidents, the number of Tigreans displaced through conflict more than doubled. When the prime minister was elected in April 2018, the total number of Tigreans displaced due to conflict stood at 28,651 (IOM, 2018). In February 2019, it hiked to 81,109 (IOM, 2018).

The Tigrean plight appears tolerable when compared to other minority groups. The Gedeo people were close kin of the prime minister’s majority ethnic group-the Oromo (Obse, 2019). Some of them lived amidst a sub-clan of the Oromo called Guji. Gedeosresiding within the Oromo territory submitted a request to govern themselves by forming a special zone before the prime minister got elected (Obse, 2019). They didn’t get a reply after the prime minister got elected. What they got was a massive assault from the Guji-Oromo (Obse, 2019). The UNOCHA reported 818,250 Gedeosfled West Guji on June 2018 (UNOCHA, 2018).

Ethiopia assumed the top spot in the global list of highest internally displaced persons (IDPs) following the Gedeocrisis. There were 1.61 million IDPs when the current prime minister took office. The February 2019 figure stands at 2.23 million IDP (IOM, 2019).This tragedy transformed Ethiopia from the second largest host of refugees in Africa (sheltering over 900,000) to the top host of internally displaced persons (IDPs) in the world (displacing over 2 million) (UN, 2018; UNHCR, 2018a; UNHCR, 2018b).

The attacks against minority groups violatedArticles 14, 15, and 16of the constitution. These articles guarantee citizens the rights to life and security of persons. The atrocities also violated Art 25 which entitles all persons “effective protection without discrimination on the grounds of race, nation, nationality, or other social origin…”. Art 12 (2) warns “any public official or an elected representative is accountable for any failure in official duties”. But the government has not held a single official accountable for the massive displacement ongoing in the country. In fact, the prime minister picked as defense and foreign ministers the presidents of the two regions where most of displacement is taking place (AS, 2019). Ethiopia’s first female defense minister was assigned to head the ministry of Urban Development and Construction (AS, 2019).

The divisive languages, propaganda documentaries, and tolerance of violence checks two litmus tests of authoritarian behavior which Levitsky and Ziblatt (2019) coined. These are a denial of the legitimacy of political opponents and toleration or encouragement of violence. The authors ask: “do they baselessly describe their partisan rivals as criminals…?” They also ask: “have they tacitly endorsed violence by their supporters by refusing to unambiguously condemn or punish it?” (Levitsky and Ziblatt, 2018, p. 23-24). The above discussion implies this might be the case.

Another domain where public sphere seems to be shrinking in Ethiopia revolves around the freedom of thought, opinion, and expression. Art. 29 of the constitution entitles Ethiopians a right to hold, express, and spread any thought without interference. In practice, this freedom doesn’t seem to apply to individuals having dissenting opinions. Government media pressures dissenters to undergo self-criticism for their past allegiances. Those who don’t are labeled anti-reform and clients of the previous government. Further, the Attorney General announced it will issue a hate speech law in November 2018. This law fines anyone found guilty of spreading hate speech up to three years of imprisonment and 5,000 Ethiopian Birr (currency) fine (HRW, 2019).

Symptoms of shrinking public sphere also manifested in the state capital. Art 49 of the constitution declares Addis Ababa as Ethiopia’s capital. Art 49 (2) stipulates its residents “shall have the full measure of self-government” (WIPO, 1994, p. 16). However, Art 49 (5) recognized the capital was situated within the Oromia region. So, the constitution entitled the Oromia region to have “special interest…regarding the provision of social services or the utilization of natural resources and other similar matters” (WIPO, 1994, p. 16).

The government transferred a mayor from a small Oromia town to administer the capital in July 2018 (Zenebe, 2018). The installment of non-resident as de facto mayor violated Art 49 (2) of the constitution on self-administration. He was not a member of the capital’s city administrative council. This act also violates Art 13 (2) of Addis Ababa City Administration’s Revised Charter (Proclamation No. 361/2003). This article states the city’s mayor and deputy mayor must be members of the city’s administrative council (NBE, 2019).

Subsequently, the government ordered officials of Bole Sub-city to issue thousands of ID cards to people residing in the Oromia region. The sub city’s public relation official confirmed to the local radio station they issued 2000 resident ID cards (NBE, 2019). The government dismissed the official the following day accusing her of inciting ethnic conflict. She exposed this injustice by going public on media. As a result, the sub-city restored her back to her position while still denying it issued ID cards (NBE, 2019, Senayit, 2019).

Meanwhile, a leaked video surfaced which scandalized the President (now defense minister) of the Oromia region. The video shows the regional presidentexplaining the significance of demography (ethnic composition) in winning the election. He stressed cities are the centers of gravity in Ethiopian politics. He then declared he has resettled half-million Oromos around the capital city (Reyot, 2019). His ethnic group, the Oromo, constitute a majority nationwide. But they are a minority in the capital city. This video and the ID-Card scandal caused a huge uproar among the capital city’s residents.

Some activists formed a civic organization to resist this development. This organization called on a press conference to advocate itself. A cell phone video footage shows the police surrounding the venue where the press conference is due to take place. It shows the police blocking the entrance and telling the invitees (including the press) the conference is prohibited (ET, 2019).This activity checks the fourth litmus test of an authoritarian regime Levitsky and Ziblatt (2018) identified, namely: “readiness to curtail civil liberties of opponents, including media” (2018, p. 23). Levistky and Ziblatt (2018) ask:

have they [the leaders] supported laws or policies that restrict civil liberties, such as expanded libel and defamation laws, or laws restricting protest, criticism of the government, or certain civic or political organizations? (2018, p. 24)

The answer to the above question is: “yes!” The current government is drafting hate speech law. It transgressed the capital city’s residents’ right to self-rule. It assigned a mayor who is not a member of the city’s administration council. It attempted to change the capital city’s demographic composition by distributing ID cards to non-residents. And, it violated the free expression of dissent by prohibiting a press conference.

In sum, the public sphere in Ethiopia is shrinking in multiple dimensions. The divisive languages encouraged the persecution of dissenting minorities. Ethiopia topped the global list of IDPs because of this. The fine and imprisonment announced in the hate speech draft curbs free expression. The government’s attempt to change the demographic composition of the capital for the 2020 election triggered unrest, followed by repression. These measures violated several articles of the constitution.

5. Conclusion

This paper went against the mainstream tide hailing the current Ethiopian government. UNESCO awarded the Ethiopian prime minister the Félix Houphouët-Boigny peace price on April 29, 2019 (PMO, 2019). Time Magazinealso named the Ethiopian prime minister one of the top 100 influential people in the world (Time, 2019). This universal acclaim has political and legal bases. The political basis is not worth discussing herebecause it is mired by ideological clashes. However, the legal arguments deserve a rebuttal because they are based on constitutional governance. This conclusion focuses on legal arguments.

The most comprehensive legal assessment of the current Ethiopian government to date isthe Human Rights Watch report issued this year (HRW, 2019).HRW reviewed the Ethiopian government’s legal performance across eight indicators. These were: freedoms of assembly, freedom of expression, freedom of association, arbitrary detention, torture, and detention conditions, commitments of international human rights norms, democratic institutions and political space, accountability and justice, and conflict and internally displaced persons.

The underlying conclusion of the HRW report is this: Ethiopia is heading in the right direction. This conclusion makes sense only if one accepts its “relativistic premise”. One must compare the current government’s performance with its predecessor. One must also accept HRW’s evaluation of the previous government at face value. If one follows this relativistic approach, one will inevitably arrive at HRW’s key conclusion. Here is a distilled version of HRW’s relativist assessments:

· Accountability and justice: Ethiopia banned the UN to monitor human rights conditions for years. Security forces abused people. The current government publicly admitted this shortcoming and detained former officials. The government should: put suspects on trial, reform security sector, and form truth and reconciliation commission.

· Democratic institutions and political space: The ruling party occupied 100 percent of parliament seats since 2015. The government jailed opposition leaders. The electoral board, human rights commission and the judiciary remained partial. The current government has promised electoral reforms, released opposition leaders, and appointed new officials. It should restore law and order and permit political rallies.

· Freedom of expression: the previous government enacted anti-terrorism law, the freedom of mass media and information and computer crime proclamations to curb free expression. It used these laws to ban non-state media and jail journalists. The current government unlocked 246 websites and permitted exiled media to repatriate. But it shut the internet and assault journalists occasionally, channeled divisive documentaries, and drafted hate speech law. The government should rectify these actions.

· Freedom of assembly: the previous government enacted the Charities and Societies (CSO) Proclamation and the Anti-Terrorism Proclamation (ATP) to suppress NGOs and opposition groups. The current government repealed the CSO law and is reviewing the ATP. The new ATP should respect freedom of assembly.

The HRW report is relativist. This relativist approach gauges progress by comparing an old regime with a new one. There is enormous literature describing the repressive practices of the previous government (Butoi-Vergara, 2015; Hailegebriel, 2010). If one travels this relativist path, one might endup hailing all regimes in Ethiopian history. This is because a brutal Marxist military junta ruled Ethiopia before 1991. Even this Marxist junta can pass the relativistic test. This is because an absolute monarchy ruled Ethiopia before 1974. So, one must never judge the current government by comparing it with its predecessors. How then can one assess it?

The constitution must be the only criteria for assessing government performance. This paper is about constitutional retrogression. The first question to ask is: “did the government violatethe constitution or not?” The number and types of constitutional violations are irrelevant. A violation of a single article in the constitution should be a cause for concern. This is true in cases like Ethiopia where all symptoms of authoritarianism are present. Would be authoritarians never wage a frontal assault on democracy. They penetrate and settle in established systemsto hack away the pillars of democratic institutions in measured steps (Landau, 2013).

Today, the plight of Ethiopian minorities of all stripes (ethnic, religious, ideological, etc.) is at stake. There are more internally displaced persons (IDPs) in Ethiopia than elsewhere. However, the ideological struggles at the political front and the relativistic approach at the legal front have coalesced to eclipse the stark reality. Per Plato’s allegory of the cave, most observers continue to stare at the shadows-turning their backs on the people.

The acute dearth of critical evaluations has hampered the quality of this paper. One can hardly find cogent analyses on constitutional retrogression in contemporary Ethiopia. That is why this paper heavily relies on primary sources to address this gap. This is where comparative analysis helped. This paper greatly benefitted from the wide variety of case studies on constitutional retrogression worldwide. It brought clarity and structure to this paper.

Finally, if Ethiopia is really undergoing constitutional retrogression, then what is to be done? I think Levitsky’s and Ziblatt’s recommendations come in handy. The ultimate responsibility rests on elites. They should serve as gatekeepers of democracy (Levitsky and Ziblatt, 2018). Authoritarians join mainstream politics when the establishment allows them. The post-Second World War Europe and post-Cold War Latin America shows seasoned politicians tend to underestimate new populist leaders only to end up disappointed when it is too late (Albright, 2018; Levistsky and Ziblatt, 2018).

Ethiopian elites should coalesce to save the constitutional order in Ethiopia. They should work to marginalize authoritarian populist leaders from retaining power. The dominant political parties of the U.S prevented Henry Ford, George Wallace, Eugene McCarthy,and others fromtaking the presidency (Levitsky and Ziblatt, 2018).Ethiopian elites should learn from Finish and Belgian politicians of the 1920’s (Levitsky and Ziblatt, 2018). These elites abandoned their political differences and coalesced to defeat extremist contenders. Ethiopian elites should alsoengage the international community. They must awaken them from their relativistic slumber. Ethiopians don’t deserve a government which is better than its predecessors. They deserve a government that fulfills Ethiopia’s constitutional standards.

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