The government is arguably setting a problematic precedent by attempting to misuse the constitutional interpretation mechanism
The National Electoral Board’s announcement that it will be unable to conduct general elections as scheduled due to the COVID-19 outbreak has touched off a debate about how this affects the constitutional order. The discussion has focused on how to address the constitutional requirement that elections be conducted every five years. Now the matter, characterized as a constitutional gap, has been referred to the House of Federation (HoF) for interpretation.
Mulugeta Aregawi has taken the debate a step further and argued on Ethiopia Insight that because the case does not involve a ‘dispute’, a precondition to activate constitutional interpretation, the matter referred to the Council of Constitutional Inquiry/HoF does not present a case for constitutional interpretation. To the extent that Proclamation No. 798/2013, which the lower house of parliament invoked in support of its referral, provides a broader meaning of interpretation than the constitution, Mulgeta argues that it is void.
Still, even if the proclamation was constitutional and valid, the two institutions should consider rejecting the referral for these reasons:
- Council of Constitutional Inquiry (CCI) Proclamation No. 798/2013, the basis for the House of Peoples Representatives’ (HoPR) referral to the House of Federation, (HoF) does not recognize the concept of a ‘constitutional gap’ as a basis for constitutional interpretation;
- Even if ‘constitutional gap’ were an acceptable basis for a referral to the HoF, there is no constitutional gap that would require interpretation; because in this case the constitution is said to offer three possible solutions to the problem that would not require interpretation.
- Using the pretext of constitutional interpretation to arbitrarily set aside the remedies provided for in the constitution would set a dangerous precedent. It would effectively allow the government of the day to misuse the interpretation mechanism anytime it pleased to avert what it considered an unfavorable outcome of a direct application of a constitutional requirement.
The problem and possible solutions
The State of Emergency necessitated by COVID-19 establishes a public danger that threatens the holding of timely general elections. If the polls are postponed past the constitutionally prescribed limit, the terms of office of all government officials would expire before new officials could be elected. Therefore, there would technically be no constitutionally recognized government.
Some politicians and parties, arguing that the constitution does not provide a solution to the problem, are calling for a negotiated solution, such as a “transitional” or “caretaker” government. One party, the Tigray People’s Liberation Front objects to any postponement, insisting that the polls be conducted on time. The government, for its part, has presented four alternatives, all of which were said to be equally constitutional:
- Dissolve the parliament but extend the term of the current government;
- Extend the term of the current government with full mandate for the duration of the state of emergency;
- Approve a constitutional amendment to allow postponement of election; or
- Seek constitutional interpretation from the House of Federation.
Having considered the relative merits of the four alternatives, the government has chosen constitutional interpretation. The lower house endorsed the government’s decision and referred the matter to the HoF, invoking Article 3 of CCI Proclamation No. 798/2013.
The government’s approach could be challenged on three grounds:
First, it is not in accordance with strict application of the law on constitutional interpretation; second, it is not compatible with the broader view of constitutional interpretation in general; and third, it poses a potential threat to constitutional authority.
A narrow view of constitutional interpretation
Article 62(1) of the FDRE Constitution empowers the HoF to interpret the constitution but nowhere does it specify what constitutes an issue subject to interpretation or when it should be used. Nor does the proclamation that defines the powers and responsibilities of the HoF provide further details. To the extent that this matter is addressed under Council of Constitutional Inquiry Proclamation No 798/2013, which the HoPR used as a basis for referring the case to the HoF, a close reading of this proclamation suggests that the problem, as framed by the government—a constitutional gap—is not a recognized ground for constitutional interpretation.
First, Article 3(1) of the proclamation, which establishes the principle of “constitutional interpretation” defines it simply as examining the constitutionality of “any law, customary practice or decision of government organ or decision of government official.” The proclamation provides no other meaning to the term. Clearly a constitutional gap does not qualify under this definition, and therefore is not within the scope of Article 3(1) of the proclamation.
Second, as noted above, the HoPR cited Article 3 (2) (c) of the proclamation as the basis for its referral. This provision states that where the “issue of constitutional interpretation to be submitted to the Council in accordance with sub-article (1) of this Article” is not justiciable, it “may be submitted to the Council by one-third or more members of the federal or state councils or by federal or state executive organs.”
Article 3 (2) and its sub articles provide for the procedure to be followed when an “[i]ssue of constitutional interpretation to be submitted to the Council in accordance with sub-article (1) of this Article” arises. Thus, sub-article 2 of Article 3 refers to cases envisaged under Article 3(1)—and provides no other grounds for constitutional interpretation. It therefore follows that using ‘constitutional gap’ as a pretext to call for constitutional interpretation is not justified under Article 3(2) (c) of the proclamation.
It seems disingenuous to invoke a legal provision that is used only in cases in which the constitutionality of legislation or customary practice or government decisions is challenged, as justification for claiming that a “constitutional gap” requires HoF interpretation.
Thus, the referral for constitutional interpretation could be dismissed by the CCI and/or the HoF not only because the concept of ‘constitutional gap’ is not a recognized basis for constitutional interpretation, but also because the referral is based on a legal provision that is not applicable to the issue at hand.
A broader view of constitutional interpretation
Even if there is no clear legal basis to claim that a constitutional gap is a valid reason to request interpretation, we know there are other generally accepted grounds for the process, including the existence of a gap or omission in the constitutional text. Let us assume for the sake of argument that the legislature did not intend to exclude ‘constitutional gap’ as a possible justification for HoF interpretation.
The value of constitutional interpretation in this case would still depend on whether the term ‘constitutional gap’ properly characterizes the current dilemma. In general, a constitutional gap, otherwise known as constitutional lacunae, occurs when there is no existing rule to resolve an unforeseen situation that may arise. In this case, however, where the government has presented three other possible solutions that would not require constitutional interpretation, characterizing the current dilemma as a ‘constitutional gap’ would be a misuse of the concept, as well as a contradiction in terms. The availability of other solutions that do not require constitutional interpretation seems to preclude the need for such a remedy.
The government has rationalized the need for a constitutional interpretation by rejecting the other constitutionally prescribed solutions on their merits. That appears to be problematic. Where the constitution prescribes a solution for some unforeseen circumstance, the prescription must be followed. The constitution does not give the government discretion to reject its mandated solutions and resort to other alternatives when it finds the constitutionally prescribed solution unpalatable. The principle of constitutional supremacy, as outlined in Article 9, means that whatever defects the application of the constitution might have, it must be applied. Unless the text or the spirit of the constitution is changed through amendment, full effect should be given to it.
It follows that in the case of this COVID-induced emergency, insofar as the constitution provides a relevant solution, the government is duty bound to respect it, irrespective of its opinion of its merits. Taking this stance is not to downplay the government’s concerns relating to the constitutionally prescribed solutions as irrelevant or insignificant. But so long as the constitution is the supreme law of the land, these solutions, with all their shortcomings, have to be implemented.
In sum, even if ‘constitutional gap’ were a legally recognized ground for interpretation by the HoF, because the current emergency does not meet the standard for a ‘constitutional gap’, there would still be no case for HoF interpretation.
Beyond legal technicalities
The government’s chosen course of action can be seen as undermining constitutional order because it seems to be motivated by self-serving bias. It is clear to the average Ethiopian that the government would prefer referring the case to the HoF because friendly members of the upper house would interpret the constitution in a manner that allows the government to continue in power until health risks from the coronavirus have been minimized. Thus, the government will simply have found a way of extending its term without compromising its reputation.
Furthermore, the government has already claimed credit for referring the case for constitutional interpretation. In his recent video statement, Prime Minster Abiy Ahmed said the government should be praised for sending the case for constitutional interpretation while it could have extended its term with any of the three previous options. According to the prime minister, this is praiseworthy because it is in accord with constitutionalism.
Constitutionalism, however, means abiding by the constitution. Supremacy of the constitution, inter alia, requires solving a problem in accordance with mechanisms the constitution offers. Where a problem can be solved by direct application of the constitution, the constitution requires its direct application. Only when the constitution does not provide a remedy for a specific issue can constitutional interpretation be legitimately employed.
For a government to set aside constitutionally prescribed solutions with a view to seeking another path it might like better would be inconsistent with constitutional rule. Indeed, in this instance, the government appears to be seeking an interpretation that would itself be unconstitutional. Furthermore, referring a matter for interpretation without regard for a constitutionally prescribed remedy it finds unfavorable sets a dangerous precedent. Such an approach hinders constitutionalism rather than advancing it.
As noted above, be it by the strict application of the law or by a more relaxed understanding of the constitution, the question at hand does not require interpretation by the HoF. Resorting to this remedy would itself be unconstitutional. Thus, wittingly or unwittingly, the government is setting a dangerous precedent, attempting to misuse the constitutional interpretation mechanism to avoid what it considers unfavorable consequences that would occur were relevant constitutional provisions to be observed.
It is not too late to stop this perversion of constitutional intent. The HoF and/or the CCI should reject the referral as inadmissible. It is not an issue for constitutional interpretation. If they do reject the referral, the government would be compelled to apply one of what it claims to be the constitutionally approved remedies. As noted above, this may not change the eventual outcome. But rejecting the case would ensure that the outcome would be in accord with the constitution, thereby fostering rather than undermining constitutionalism.