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  • Gashaw Ayferam Endaylalu

Constitutional Amendment: The Road to Peace

Gashaw Ayferam Endaylalu is a PhD student in Political Science at Addis Ababa University, Ethiopia. He currently works at the Institute of Strategic Affairs, Addis Ababa, Ethiopia as an international relations and diplomatic researcher.


Introduction


The current Federal Democratic Republic of Ethiopia (FDRE) constitution is under serious attack from different aspects. It is a major source of contestation among different formal and informal actors. On the one hand, the constitution is considered as something sacred and indisputable. This is the position held by Tigray People Liberation Front (TPLF) and Self-proclaimed federalist force. Constitutional change either in part through amendment or in whole is considered as an existential threat. In contrast, the same constitution is declared neither the constitution of the people nor constitution of the Nation of Nationality but EPRDF Kitab (Vestal, 1996), Woyane Constitution (Alemante, 2015), EPRDF’s party program (Teguadda, 2011). In particular Amhara nationalists and unionists-the so-called self-declared Ethiopianists considered the constitution as an existential threat for the very existence of the Amhara and the continued existence of Ethiopia, respectively. There is also a moderate perspective asserting that the constitution is nominal and it lacks implementation. Thus, the legitimacy of the constitution is in question. The crisis of constitutional legitimacy mainly emanated from the flawed constitutional making process, its content and actual practice. In the following section, I attempt to show how, who and under what circumstance the constitution was made, what are key areas of contestation and constitutional antithetical neopatrimonial rule.

The Making of the Constitution

Legitimacy is the first prerequisite for an armed group who controlled the State through illegal means. The 1995 constitution-making process was thus central to both the consolidation of power and legitimacy for EPRDF. At the eve of the making of the constitution, everything was dominated by the TPLF/EPRDF. Those political parties regarded as perceived or actual threats for the hegemonic aspiration of TPLF had been eliminated systematically. The making process of this constitution was guided by Article 11 and 12 of the transitional charter. The making process had three distinct phases: drafting of the constitution by a constitutional commission established in accordance with article 11 of the charter, the adoption of the draft by the council of representatives followed by public discussion and the ratification by a popularly elected Constituent assembly as per article 12 of the charter.


A 29-member Constitutional Drafting Commission was appointed by EPRDF dominated Council of Representatives in conformity with the transitional charter (Kassahun, 1995; Vestal, 1996, 1999). It was claimed that members of the commission were representatives of different sections of the society. However, the commission was criticized on the ground that members are handpicked by the TPLF/EPRDF dominated Council of Representatives. Merera (2004:38) argued that “…members of the Commission were mostly selected from members of the EPRDF-dominated Council of Representatives itself while the few Commission members who were appointed outside of the Council were subject to the approval of the same”. Political parties who were part of the process also withdrew from the process (Teguadda, 2011).


The commission had its own defects. First, as the entire process of the transition period was controlled by EPRDF; it is difficult to assume that the commission had autonomy. The Commission was charged to prepare the draft ‘in conformity with the spirit of the Charter’ specifically Article 4 of the charter. The charter was, however, far from a negotiated deal. It was an accord reflecting the aspirations of those who negotiated the Charter, mainly Liberation Fronts. Second, over- representation of members of the ruling party was another key defect. Since unanimous decision is difficult, EPRDF had the advantage in getting what the party wanted. Meaza, as quoted in Tsegaye (2010:27), noted that ‘“…EPRDF always dominated when an issue came to a vote, as it had the largest delegation’”. Third, the constitution was drafted by half the members of the commission. As the constitutional agreed minutes show initially from the 1st to 24th regular meetings absent members range from four to eleven. However, starting from 24th to the last regular meetings members who did not attend the meeting increased significantly averagely by thirteen. Absent members were considerably constant. Fourth, public discussion held by the commission was an instrument of legitimization. Meaza, as quoted in Tsegaye (2010), asserted that those who contest the transitional government did not participate in the forums on the ground that participation would be used for ‘legitimizing the processes. The deliberation stage is thus ‘neither a debate nor a discussion (Mesfin Wolde-Mariam as quoted in Vestal, 1996). Nevertheless, the more problematic was the adoption and ratification stage.


It was the adoption and ratification stage that created major constitutional illegitimacy. EPRDF manipulated the 1994 election for a Constituent Assembly charged with ratifying the draft FDRE constitution (Lyons, 1996; Vestal, 1996). Election fraud, intimidation and physical violence helped EPRDF to win 85% of the seats. The remaining seats were filled by small ethnic parties and individuals (Gedion, 2013). This helped EPRDF to get its desirable constitution without any meaningful objection during ratification. Major controversial provisions such as the right to self-determination up to secession, ethnic-based federalism and government ownership of land were approved without any meaningful debate (Merera, 2004). In the words of Kassahun (1995:134), “…the draft faces an absolute chance of being ratified” due the absolute dominance of EPRDF in the Constituent Assembly.


From this one can argue that the constitutional making process was entirely dominated by EPRDF. It is not a covenant of the populace in a real sense. Vestal (1996) labeled the constitution as EPRDF Kitab and the drafters as the Debteras of the EPRDF. Merera (2004:39) noted that “… in the eyes of many observers the new national constitution of Ethiopia is a replica of the EPRDF programme in both letter and spirit”. In contrary to the drafter of the constitution, Vestal (1999:92-93) argued that “…a flawed process of constitution-making produced a sham and fictive document that did not express political reality but instead was a façade behind which the true actuality of the ethnic-Marxist-Leninist political order was hidden”. In the making process, views contrary to the ideological and hegemonic aspiration of TPLF/EPRDF had been excluded systematically. Gedion (2013:221) argued that “…those who opposed ethnic federalism, the inclusion of a right to secession in the constitution and also the retention of state ownership of all land felt that they had been virtually excluded from the constitution-making process”. From this it can be argued that the constitutional making process is illegitimate. The process is flawed as EPRDF dominate the council of Representatives, constitutional drafting commission and Constituent assembly. Thus, the constitution foreshadows the re-making of Ethiopia under the hegemonic leadership of TPLF.


Contestation over the Constitution

It is usual to examine constitutional legitimacy in light of the constitutional making process, its contents and the actual practice. As noted above, the constitutional making process was flawed as it was dominated by EPRDF. As a result, it lacks legitimacy in the making. Apart from the lack of original legitimacy in the making, the content of the text is also subject of contestation. In contrast to the formerr, a foreign observer of the constitution argued that

The constitution of the FDRE is both nominal and fictive. Its provisions describe but do not limit government behavior and they do not correspond to actual government practice. There is no commitment to constitutionalism and the pre-constitutional principles of the mass of the people are not reflected in the document. Inspection of several of the articles reveal constitutional values that many Ethiopians find troubling (Vestal, 1999:95)


Contested provisions of the constitution are the right to self-determination including secession, government ownership of land, flag, language, ethno-linguistic based federalism, demarcation of regional States, and constitutional interpretation. All of these contested provisions emanated from the very raison d'être of the constitution.


The very essence of the constitution is stated in article 8 and 39. Sovereignty is bestowed upon the nation, nationalities and peoples. Its raison d'être is thus to constitute ‘government of the ethnics, by the ethnics, and for the ethnics’. However, the making of ‘nations, nationalities and peoples’ as a cardinal element of the new Ethiopia didn’t reflect the common aspiration of Ethiopia. The text did not reflect the political reality. There is a veiled reality behind the constitution. The practices of the TPLF-led EPRDF regime reveal the obscured intention of the constitution which is hegemony. By persuading the majority as an ‘oppressed nation’, minority supremacy under TPLF leadership was established. According to Merera (2004:34), the restructuring of the State based on ethnic nationalism “…ends up serving the hegemonic interest of the victorious Tigray élite rather than the hoped-for decentralization of power and multiparty democracy…”. In ensuring the continued TPLF hegemony the regime followed neopatrimonialism, a system of rule characterized by the lack of separation between the public and the private sphere in which real power and decision-making lie outside formal Weberian institutions (Bratton and van De Walle, 1997; Mkandawire, 2015). In practice, the regime is neopatrimonial which is the antithesis of democracy. Thus, the constitution lacks constitutionalism. As a result, unconstitutional practice of the regime results in a constitutional legitimacy crisis and the declaration of the EPRDF regime as illegitimate. Legitimacy under EPRDF neopatrimonial rule rests upon coercion, patronage system, and extraversion. In the following section, I analyzed how neopatrimonialism impedes the promise of the constitution namely democracy, multi-party system and decentralization.


Constitutional Practice: Deviation from the Legal-Rational

Despite the establishment of legal-rational institutions, in practice the regime is neopatrimonial. On the one hand, there are constitutionally established legal-rational institutions like parliament, election, civic organization, political parties, judiciary, executive, civil service and other democratic institutions. On the other hand, these institutions are façade and dysfunctional. Instead, decisions are made, real power is exercised, and the State is administered through informal mechanisms. In this case, the legal-rational institutions established in accordance with the constitution have three functions. First, the existence of formal legal institutions gave the regime legitimacy to rule. Second, the cosmetic appearance of formal legal institutions foreshadows the real operations of power. This is important for gaining external legitimacy and aid from donors. Third, the formal legal structure and institutions serve as tools to implement decisions made informally “by the networks of the ruling clique, and provide the appearance of legality” (Dima, 2009:276). The formal institutions are the possessor of real power legally but they have nominal power when it comes to practical affairs. The actual power group functions outside of the formal legal structure of the State without accountability. Attempts to change the system using legal mechanisms such as election are sleeveless. The 2005 national election is a showcase.


The restructuring of the Ethiopian State with federalism and decentralization but practical centralization, and subordination of the periphery to the core elite is another manifestation of neopatrimonialism. Legally speaking, the constitution recognizes the right to self-determination and established nine regional States and two city administrations. Against this backdrop, however, the regional States are either incapable of exercising their constitutional right or they are implementing the decision made by the elite of the center. Watts (2008:48) noted that “the operation of the federation is also affected by the fact that the federal policy process has been mainly channeled by the EPRDF as the dominant political party, thus in practice making the political processes much more centralized than its constitutional form”. Economic, political and budgetary dependence of regional states on the federal center resulted in center domination and heavy centralization of power (International Crisis Group, 2009). Party structure, democratic centralism, gimge-ma (criticism and self-criticism), clientelism and coercion are instruments used by TPLF-led EPRDF in dominating every aspect of the State. This is the perfect color of neopatrimonial rule: decentralization on the paper centralization in practice.


Tronvoll and Sarah (2003) identified five mechanisms through which EPRDF control and influence the internal politics of regional States: (a) direct membership of elected EPRDF representatives on state councils (e.g Benishangul-Gumuz and Afar regional states), (b) Attaching key EPRDF political ‘advisors’ to the executive of the four peripheral states (attached cadres have decisive role in political affairs), (c) disseminating and streamlining thereby indoctrinating an EPRDF ‘way of thinking’ through providing various types of leadership trainings, conferences and educational functions for state and party officials and bureaucrats, (d) disciplining regional party members and removing 'unwanted members' from their political positions, (e) and intervening through federal forces (armed and security) to assume direct control when regions fail to maintain stability. Party intervention and indirect control is evident in the peripheral regional states: Afar, Somali, Benshangul-Gumuz and Gambella. To ensure absolute loyalty of the peripheral to the center EPRDF uses divide and rule strategy, imprisoning and demoting disloyal cadres, and monitoring them by assigning political cadres from the center in the name of advisor. This kind of elite clientelistism is also manifested under the current reform. Supporters of the reform are promoted to higher positions while regional leaders who are considered as disloyal during the reform and crisis were either imprisoned for alleged corruption or ousted from power. This is an element of continuity from EPRDF I to ‘EPRDF II’ under the name of prosperity. Under both regimes, loyalty to the center is the only way to stay in power.


The FDRE constitution has also made clear boundaries between the government affairs and party, formal and informal. However, EPRDF failed to practice what is stated in the constitution and other legal instruments. Politicization of civil service is apparent. In his doctoral research, Henok (2018:168) argued that “the politicization of the civil service is continued to the extent it becomes difficult to separate the ruling party (as the government of the day) and the public service”.


To summarize what makes EPRDF different from its predecessors is that the party restructured the State in accordance with the Weberian notion of a legal-rational political system. It has introduced constitutionally legal rational institutions such as parliament, check and balance, separation of power, multiparty system, federalism and independent bureaucracy. In practice, however, EPRDF revivified patrimonial rule and practiced it in a pervasive and destructive manner more perfectly than the military Derge and imperial regime. The legal-rational institutions paradoxically used as an instrument of obtaining internal and external legitimacy. Established democratic institutions are cosmetic and the State is seen as the private affairs of the TPLF-led EPRDF elite clientlists.


Personalized power, fusion of state and party, contested legitimacy and as a result rule based on manufactured consent using patronage system, extraversion and coercion; entwinement of business and politics and as a result parasitic rent seeking and state capture, hierarchical patron-client relationship between networks of the ruling clique of the federal government and regional government leaders, strong executive, politics of clientelism and party dominance are key manifestation of neopatrimonialism.


Concluding Remarks


In this paper, I examined the constitutional legitimacy crisis of the FDRE constitution. The central argument is that the constitution lacks legitimacy in the making, content of the constitution and actual practice. It is not a negotiated constitution. Rather the very raison d'être of the constitution is elite hegemonic aspiration. As a result, the kind of legitimacy is contested legitimacy. Coercion, intimidation and extraversion are alternative means to obtain legitimacy. As hegemony is always a contestable, often unfinished process, counter hegemonic resistance endangered the constitutional durability of Ethiopia. The imperial and PDRE constitutions had never survived their authors. The current FDRE constitution also faced the same problem. Therefore, this paper suggests that even though the constitutional making process of the FDRE constitution is illegitimate, it is possible to make the constitution legitimate and hence the constitution will continue. Inclusive elite negotiation and then amendment, and constitutionalism are the three cardinals to make the FDRE constitution legitimate.

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The article represents the authors’ viewpoint. You can contact the authors through the Horn of Africa Insight at info@hornafricainsight.org.


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