Source: Ethiopia Insight
May 2, 2020
Now is the time for Ethiopia’s democratic institutions to step up and play their role in the transition, writes Mamo Mihretu, Senior Policy Advisor to Prime Minister Abiy Ahmed, exclusively for Ethiopia Insight.
The COVID-19 pandemic has presented the world with its biggest test in living memory. To manage both the disease and its socio-economic impact, it has become necessary for most countries to implement some version of a lockdown to reinforce social distancing.Some lessons are already self-evident: first, fighting the pandemic is not a matter for public health institutions alone; it needs the active participation of economic and security sectors; and second, the impact will be exponentially greater on developing countries such as Ethiopia.
As a result, the federal government has declared a state of emergency that has laid out social distancing requirements and enhanced the powers of its law enforcement authorities to ensure these measures are observed by the public. It is encouraging to note that private and civic organizations have responded to the call with a sense of duty and responsibility. However, the task before us is immense and requires coordination at local, national, regional, and global levels.
The record of the government so far in fighting the pandemic is highly encouraging, but until all cases have been detected and isolated, the risk of the disease getting out of control is ever present. One indicator that may signal that we are close to the finishing line is the question of whether all cases have successfully been traced either to travel history or the country’s first infection. As we continue to quarantine, test, and trace, it is crucial that the cases we may have missed do not lead to community transmission.
What does this all mean?
It means that until these criteria are met, the goal of containing the disease ought to supersede all other priorities; all other agenda items that compete with this priority must be postponed. In the face of death, we all are one. We are far stronger when we are focused on this singular agenda and fighting it together.
One consequence of this single-minded focus on the pandemic and the need to enforce mandatory social distancing has been the postponement of the general elections beyond the timeframe required by the constitution.
Article 58(3) of the constitution provides that elections should be held every five years, and new elections be concluded at least one month before the expiry of the term of the parliament. The term of parliament will expire in early October 2020, and the elections should therefore be held by early September. On the other hand, the measures described above to prevent and mitigate the impact of COVID-19 make it impractical to hold elections within this timeframe. A historic pandemic has brought us to an unprecedented constitutional moment—if not a constitutional crisis—which must be addressed by legal and democratic means.
The National Electoral Board of Ethiopia’s (NEBE) planned milestones that are pre-requisites for the election—such as voter education and registration; production, procurement and distribution of election materials/ equipment; recruitment and training of election support staff; etc.—have been missed or delayed. With the uncertainty created by the pandemic in mind, NEBE has concluded that it will not be able to conduct the elections on 29 August as planned.
It hardly needs elaborating that this pandemic and its profound health and socio-economic consequences were unforeseen by the government—indeed, by any government. It is public knowledge that the ruling party had been preparing for the elections on the assumption that they would take place as scheduled.
Events such as COVID-19 have been labelled ‘black swans’; they are highly unlikely, have substantial effects that threaten to change the course of history, and are only rationalized in hindsight. While many public health experts and public figures have warned us of the possibility of a pandemic flu, the novelty of the virus and its modes of transmission meant that no nation was prepared to handle it. In fact, COVID-19 has called into question traditional models of disaster preparedness, since preparing for it would have required vast resources with a substantial cost burden to maintain the necessary excess capacity in the health and industrial systems. For instance, manufacturing businesses could not switch to the production of masks and medical equipment without a significant redesign and investment. This is all to say that almost the entire world was caught unprepared. It is precisely this novelty that has led to an impasse that requires a creative constitutional solution when it comes to Ethiopia’s upcoming election.
Despite the requirements on periodic elections and the term of the parliament, the constitution has no explicit provisions dealing with situations where it might be impossible to hold elections before the expiry of the term of the parliament due to a force majeure event such as COVID-19. In the absence of a general election by early September 2020 or a constitutional solution, we will face one of two possible outcomes: First, if the current administration stays in office, it will overstay its mandate and risk becoming illegitimate, legally and in the eyes of the public. In the alternative outcome, if the administration steps down, the Ethiopian state would be without a government.
As we search for the right constitutional solution, we should ensure that it meets several imperatives of our battle with the pandemic, as well as our long-term ambition of consolidating democratic governance. Any proposed solution should allow us to manage the pandemic with the full resources of the state. At the same time, any path forward should adhere to the spirit and letter of the constitution; guarantee an election that is inclusive, free and fair; and be seen as credible, legitimate, and beyond reproach in the eyes of the public and the international community.
Finally, the solution we propose needs to be expedient taking into account the time and resource constraints, and enjoy the broadest possible degree of acceptance by the public so as to ensure an orderly transfer of power to the party or parties that win the elections.
With these criteria in mind, we may entertain at least four constitutional options (albeit with limitations of their own) that will lead us towards a new normal, both in terms of public health and political leadership:
- Current government stays with a limited mandate as “caretaker” after the dissolution of parliament;
- Current government extends term through a state of emergency and enjoys regular full mandate;
- Constitutional amendment; and
- Situation referred to the House of Federation’s Council of Constitutional Inquiry, so that it can provide constitutional interpretation and pass a binding resolution.
Under option one, having dissolved the House of Peoples’ Representatives (HoPR) using Article 60 of the constitution, the current administration may continue with a limited mandate that precludes the issuance of new legislation and amendment of existing laws. On the positive side, this buys an additional six months to hold elections and it only requires a simple majority vote in the HoPR to trigger. On the negative side, its application arguably does not extend to regions, which would mean that it would only provide for a federal solution. The limited mandate of the caretaker government would tie the hands of the administration from taking policy measures to cope with the pandemic and its secondary impacts. In addition, a government with limited mandate may signal weakness and encourage disorder.
Under option two, the current administration may extend its regular mandate through a state of emergency (SOE). While this has the benefit of enabling the government to deal with the pandemic with a complete set of legal and administrative instruments, it has several weaknesses. Extending its own term means the government would be likely to suffer from poor legitimacy in the eyes of the public and it would undermine the spirit of our constitutional order. If elections are held during an SOE, their credibility would be at risk. This option would also be perceived as being self-serving, as the parliament is extending its own term by renewing the state of emergency. Moreover, if the COVID-19 issue is resolved, there will not be a substantive reason for extending the SOE, and this would lead to a greater constitutional crisis as parliament’s term would expire along with the emergency. In this sense, it solves the short-term challenges, but without paving a path to a long-term solution.
Amending the constitution under option three—though it may provide continuity of government through the pandemic and help guarantee a free and fair election—has the weakness of requiring cumbersome public participation and a two-thirds majority vote in a joint session of the HoPR and House of Federation, as well as majority support in two-thirds of regional state councils. The major challenge here is the requirement in Article 104 of the constitution that a proposal for constitutional amendment shall be presented for public discussion.
If the COVID-19 situation continues until at least September 2020, it would not be possible to conduct public meetings and conduct extensive discussions on proposals for an amendment. Further delay would also be likely as a broader set of more complicated topics in the constitution may well be opened for debate. As a result, it may necessitate a timeframe well beyond the deadline of August 2020, and therefore distract the government and the public from the more urgent task of protecting public health and fighting a potential economic crisis.
The fourth and, on balance, the most optimal option is to refer the issue to the House of Federation for authoritative interpretation of the constitution. The upper chamber of parliament has the sole mandate to do this, and hence is the legitimate body to undertake this task. The framers of the constitution considered the document to be a “political contract” by the nations, nationalities and peoples of Ethiopia—and grants the ultimate power to interpret it to the House of Federation on the understanding that it is composed of representatives of the various communities, who are delegated by the regional state councils.
Although the House of Federation has the final say, the Council of Constitutional Inquiry (CCI) is the “quasi-constitutional court” that takes up the issue first. Article 3(c) of Proclamation No. 798/2013 provides that constitutional disputes on non-justiciable matters may be submitted to the CCI by one-third of members of the federal parliament or a regional council, or by executive organs at either tier. The fact that the CCI is led by the President of the Supreme Court and her deputy and several independent lawyers will add to its legitimacy. Compared with the other options, the involvement of the judiciary would enhance political legitimacy.
The case at hand requires a binding constitutional interpretation as the constitution does not explicitly address what will happen when an unforeseen event prevents the holding of periodic elections as stipulated by the constitution.
This option has several advantages: expediency, nationwide applicability, allowing for the continuity of government through the COVID-19 crisis, and it will pave the way for credible elections. The final decision by the CCI and House of Federation after due deliberation will be an authoritative resolution of the case.
To summarize: The constitution offers several options that ensure the continuity of a legitimate government beyond its term on a temporary and exceptional basis. There would have been a crisis if the constitution had not provided for such safety valves; but, it has. Instead, what we have is an unprecedented challenge to understand, interpret, and apply the constitution in a manner that best serves its most fundamental purpose—the continuity of the Ethiopian state.
Institutions are meant to provide continuity and objectivity. With all the risks that it entails, now is a ripe occasion, an opportune moment, to put the maturity of our institutions to the test, to empower them to exercise their raison d’etre and to entrench constitutionalism. The Council of Constitutional Inquiry would have a historic chance to interpret the constitution in a manner that reflects its text, spirit, and history, but without looking at it as a document frozen in time. If it succeeds in this task, then history will view the decision as a watershed moment that not only shapes the course and character of Ethiopian politics, but also a great day that heralds the consolidation of our democracy and the durability of our institutions.