By Tesfai Dirar
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).
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).