Source: Ethiopia Insight
Editor’s note: Publication of this article was delayed by the internet shutdown. We are publishing the original version rather than an updated piece in order to highlight its prescient analysis of the political situation prior to the recent deadly unrest in Addis Ababa and Oromia.
Turmoil may follow the decision to politicize the pandemic, while an election prior to reconciliation would probably be violent anyway
The House of Federation has voted to extend the term limit of all current administrations, which were due to expire on 5 October. Based on the recommendation of the Council of Constitutional Inquiry (CCI), the House of Federation (HoF) decided to prolong the ruling Prosperity Party (PP) and Tigray People’s Liberation Front (TPLF) governments until after the COVID-19 pandemic is declared to be no longer a threat to public safety.Elections will then take place within nine to 12 months of that declaration. According to the decision, the term of office of the House of Peoples’ Representatives (HoPR), the HoF, state councils and the executive at federal and state levels are also to be extended for that period. As when the COVID-19 pandemic stops being a public health threat is a subjective assessment, the decision of the HoF effectively grants Prime Minister Abiy Ahmed’s administration carte blanche to stay in power for years to come.
Many health experts believe that COVID-19 will continue to be a serious threat until an effective vaccine is distributed. Although there has been fast-track development because of the pandemic’s seriousness, experts believe it will take twelve to eighteen months, maybe even longer, to develop a vaccine. Even in rich countries such as the U.S., director of the National Institute of Allergy and Infectious Disease Anthony Fauci said that he expects the U.S. to have “hundreds of millions of doses” of vaccines ready to deploy only by early 2021.
Another challenge will be vaccine nationalism. Though there are hundreds of COVID-19 vaccine candidates currently being developed, countries such as the U.S., India and Russia clearly indicated that they would like to secure priority access to doses of COVID-19 vaccines for their own populations. The fact that a growing number of countries are taking a ‘me first’ approach to developing and distributing potential vaccines, or other treatments, will delay distribution to poor countries. After development, production and distribution will also be a serious challenge for developing countries. According to the World Health Organization, there are only 25 vaccine-manufacturing plants that can distribute large quantities across the world, and of those, only some of them will have the necessary equipment to produce the kind of vaccine that is ultimately successful.
Besides the lack of a clear vaccine timeline, the alarming COVID-19 surge in Latin America, Asia and Africa suggest the pandemic will continue to be a public health emergency for some time to come. As reported by New York Times, the coronavirus virus spread is now accelerating in many countries in Africa, where medical resources are stretched, rumors are rife, and efforts to stop the pandemic are sometimes haphazard.
Public health experts warn that given the current trends in incidence and underlying healthcare systems vulnerabilities, Africa could become the next epicenter of the COVID-19 pandemic. Epidemiologists at the Africa Centers for Disease Control and Prevention warned that there is a “catastrophic shortage” of healthcare professionals and a drastic reduction of medical supplies because of border closures, price increases, and export restrictions imposed during the pandemic. In light of uncertainties in production and distribution of the vaccine and a surge in COVID-19 infections, the decision of HoF tying the national polls to the pandemic confers Abiy power to rule for the unforeseeable future.
The government response to the pandemic may not be dictated solely by public health contingencies. Human Rights Watch warns that authoritarian leaders could use the coronavirus crisis as a pretext to silence critics and consolidate power. Some governments are using the public health crisis as cover to seize new powers that have little to do with the outbreak, with few safeguards to ensure that their new authority will not be abused.
Likewise, there is a concern that the Prosperity Party may use the state of emergency to consolidate its position. After declaring a state of emergency, the ruling party took steps to extend its monopoly on power. The emergency grants the government broader powers to adopt all necessary means to preserve peace and security in the country, including the suspensions of political rights. Following the declaration, parliament approved election postponement and HoF decided Abiy could stay in office beyond his mandate. As political disagreements heat up in the coming months, the ruling party could take other draconian measures to silence opponents.
In addition to the controversy over postponement, the lack of a clear policy framework for ending the state of emergency cast doubts over the commitment of the ruling party to phase-out the emergency and reinvigorate democratization. Since the political and health institutions are closely linked with the ruling party, winding up the state of emergency may not necessarily depend on data and scientific evidence. In the absence of independent institutions supervising the government, the emergency could potentially stay in force long after the pandemic ceases to be a threat.
The power grab concerns may cause instability and even lead to rejection of public health measures to combat the virus. COVID-19 did indeed require election postponement. However, the HoF decision disregarded the concerns of the opposition and experts. Multiple parties proposed recommendations ranging from the formation of a transitional government to constitutional amendment. In the extreme case, the State Council of Tigray led by the Tigray People’s Liberation Front decided to go ahead with regional election as scheduled. In light of such objections, the failure of the HoF to consider the proposals and concerns of opposition groups is an authoritarian approach that undermines democratization and reconciliation.
Furthermore, the legal avenue used to extend the term of the ruling parties violates principles of constitutional interpretation. Whether in Common or Continental Law systems, interpretation arises when there are disputes on the meaning and scope of a constitutional provision, law, or decisions of a government agency. Though Ethiopia has a unique interpretation system, the principles do not deviate from universal norms. As indicated in Article 84 of the constitution, the CCI has the power to investigate disputes when a law is contested as unconstitutional and any court or interested party submits a dispute.
In addition, previous CCI cases support the argument that the council only deliberates on disputes. Though Article 93 (1) of the constitution allows the government to decree an emergency in the face of an epidemic, the CCI does not have the power to deliberate on the applicability of the clause unless an interested party contests it. In the absence of such a dispute, the CCI should not have entertained the case referred to it by the HoPR.
The CCI Proclamation provides that constitutional interpretation on any un-justiciable matter 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. Though Proclamation No 798/2013 grants the CCI the power to review non(un) -justiciable matters, the issue of postponing an election is not one of the issues that fall under the category of ‘(un)non-justiciable matters’.
‘Non-justiciable’ is defined as ‘not capable of being decided by legal principles or by a court of justice.’ Non-justiciability refers to a case where the issue is said to be inherently unsuitable for judicial determination. When there is no legal issue involved, judicial bodies decline to adjudicate cases citing non-justiciability. Courts also apply non-justiciability when the issue in question is beyond the constitutional competence assigned to the courts under the separation of powers principle. The reason why judicial bodies refrain from reviewing non-justiciable cases is due to the danger of getting entangled in partisan politics. Normally, the preferred solution for non-justiciable cases is political rather than judicial.
The case referred to CCI on the extension of the term limit of the incumbent party is a justiciable matter. The constitution provides for holding elections, declaring state of emergency, and other issues relevant to postponing the election and extending term limits. These issues need to be resolved by contested cases adjudicated in a judicial proceeding. The CCI could only have the jurisdiction to deliberate on such cases after a court of law refers the matter for interpretation. CCI cannot assume primary jurisdiction to review such a matter based on its jurisdiction over non(un)-justiciable matters. The dubious way CCI assumed jurisdiction over the case and the consequent ruling to extend term limits violates standard principles of constitutional interpretation and displays the inadequate nature of the institutions designed to check the government’s powers.
Untenable status quo
This is a serious error of judgement and process as extension of the incumbents’ terms is obviously highly divisive. Although most opposition parties rejected the government’s approach, there are activists, commentators, and scholars who argue that Abiy’s administration needs to stay in power to uphold peace and stability, as well as manage the country’s transition to democracy. These groups are concerned that if a transitional government is formed, the power struggle and disagreement between political groups may lead the country into chaos.
Though these groups have legitimate concerns, their arguments are neither exhaustive nor far-sighted. The current administration may have the strength to preserve peace and stability in the short-term. However, unless the country undergoes a transition to reconcile polarized political camps, the country’s fragile system could degenerate into chaos any time. The unilateral postponement of the election could easily trigger countrywide violence that may not silenced by age-old draconian methods. Unless a new consensus emerges, counting on Abiy’s administration as a bastion of peace and stability is fanciful.
Furthermore, not only was Ethiopia unprepared to run an election before COVID-19 outbreak, it cannot conduct a free, fair and peaceful election under the existing divisive constitutional system. Since political parties have deep divisions over the ethnic-based federal arrangement, the legitimacy of the constitution, and historical narratives, the multifaceted problems of Ethiopia will not be resolved through an election. The leaders who consider holding elections as indispensable are either entirely preoccupied with power or they do not understand the potentially devastating outcomes of holding an election in a deeply divided country like Ethiopia.
In fractured societies, tensions between ethnic groups undermine government legitimacy, social tolerance, and intercommunal trust. Often, divided societies face challenges in holding democratic elections, maintaining political stability, and accommodating rival ethnic groups. When deeply divided groups try to resolve their differences through the ballot box, the election process and result will be deeply divisive and lead to a deadly turmoil, further harming national unity.
After the deadly ethnic violence following the 2007 elections in Kenya, political groups reached a consensus that led to the ratification of a new constitution, which later became the foundation for an enhanced democratization process. In post-apartheid South Africa, the African National Congress (ANC) and the National Party (NP) engaged in prolonged dialog and negotiation to resolve their differences and advance shared goals.
The ANC wanted a unitary state that would be capable of transforming the conditions wrought by apartheid while the NP and other smaller parties feared that the unitary system would undermine minority rights. Despite their differences, the parties reached a consensus through a multi-party transitional process where they all participated and decided the core constitutional principles and the structure of the government that have become the foundation of the democratic system in South Africa.
In the Ethiopian context, the COVID-19 emergency can be a blessing in disguise that provides us the opportunity to focus on forging consensus and reconciliation. Ethiopia had missed many ‘golden opportunities’ that could have led to a peaceful democratic transition. Some of the missed opportunities include the regime changes in 1974 and 1991 as well the popular movement during the 2005 general elections. Once again, history has given us another chance to discard our political strife and embrace peace and seek consensus. The contending political forces in the country need to use this opportunity before they miss the boat again.
Rather than being preoccupied with sustaining its power, the ruling party should use the opportunity to facilitate an inclusive transitional process that ensures the participation of opposition parties, scholars, activists, and civic and religious leaders. The transitional process needs to focus on achieving a political compromise on the contentious issues and constitutional reform that reflects the interests and aspirations of the country’s major political groups.
Rather than wrangling over the next election, Ethiopia badly needs an approach that heals its deep divisions. To achieve this, the government and the opposition need to abandon their rigidity. On the part of the incumbent, it needs to reconsider its plan to control power unilaterally, while opposition groups need to renounce their uncompromising rhetoric about the election and the constitution.
If both groups are committed to engaging in honest and open dialog, there could be an opportunity to address our thorniest issues. Unless both the government and opposition parties pursue such a course, the country may be heading for a political tsunami that would inflict enormous damage.