COVID-19 and federal supremacy in the constitutional system

COVID-19 and federal supremacy in the constitutional system

by Markos Debebe

As it has no constitutional basis, regional governments can legally challenge the notion of federal supremacy introduced in the COVID-19 state of emergency proclamation.

(ethiopia-insight)—On 26 March, Tigray Regional State, one of nine subnational units in Ethiopia’s federation, declared a regionwide state of emergency (SOE) for 15 days to combat COVID-19.

This was on the basis of Article 56(8) and 103(1) of the regional constitution and Article 93(1)(b) of the federal constitution. On the expiry of the first declaration, at an emergency meeting on April 9, the regional state extended the declaration for three more months. This move came a day after the federal government declared a nationwide state of emergency for five months.

Before the declaration of this federal state of emergency, some regional states such as Amhara, Oromia, Gambella, and Southern Nations took measures restricting rights and freedoms without declaring formal states of emergency. Put differently, while Tigray proclaimed a de jure state of emergency before the federal government, others have been in de facto states of emergency. Currently, those regional states which were in de facto states of emergency like Amhara,  Gambella, and Oromia have lifted the restrictions they imposed, arguing that the issue is handled by the federal nationwide decree.

Regarding the restrictions made by the federal government and Tigray, there is considerable overlap. In fact, in some scenarios, the regional state is more severe than the federal. For example, while the federal decree says nothing regarding travel within the country, the regional government banned travel within the region, including from rural to urban, and vice versa. Additionally, there is a 14-day mandatory quarantine for everyone travel to the region.

Moving to the consequence for violation of the declaration, Article 6 of the SOE proclamation imposes simple imprisonment of up to 3 years or from 1,000 to 200,000 birr fine. However, the Tigray declaration imposes only a fine. Given the fact that the state of emergency declared by the federal government has a nationwide application, the question is, therefore, based on which law a person will be prosecuted if they violate a restriction imposed by both the federal government and the regional government?  What would be done if the regional government imposed lesser fine than the federal government? What would be done if the restriction violated by a Tigray resident is punishable by imprisonment by the federal government’s state of emergency declaration? The answer for these questions is contingent on determination of the applicable law. Hence, it is necessary to assess the notion of federal supremacy in Ethiopia.

Federal supremacy clause in Ethiopia

Conceptually, a federal supremacy clause makes the federal government’s acts (constitution and laws enacted as per it) superior to all state laws and constitutions. Unlike some countries like the U.S., the Ethiopian constitution is silent concerning federal supremacy clause. In a nutshell, pursuant to Article 9(2) of the constitution, what is recognized is the supremacy of the federal constitution. In this provision, there is no mention of other federal laws and international treaties. Therefore, under the Ethiopian constitutional system, there is no a federal supremacy but only supremacy of the federal constitution. Looking the minutes of the constitution-making process, one can hardly reach a different conclusion.

As this is the case at the federal constitution level, there seems an afterthought to introduce a federal supremacy clause by a proclamation. In this regard, the first law that comes into picture is Proclamation No. 25/96, Federal Courts Proclamation. Article 6(2) of the proclamation while providing the substantive laws to be applied by federal courts in adjudicating cases states that ‘[r]egional laws to be applied pursuant to sub-Article (1) (b) hereof shall not be applicable where they are inconsistent with ‘Federal laws and international treaties.’ As per this law, federal courts are required to bestow an upper hand for federal laws and international treaties over regional laws. However, it should be noted that this constitutionally unwarranted supremacy clause is being rectified by a draft law that intends to repeal it.

But in line with existing federal courts proclamation, Article 3(3) of the SOE proclamation provides that ‘[a]ny federal or regional law, procedure or decision that is in contravention with this proclamation or regulations issued pursuant to this proclamation shall have no effect while this proclamation is valid’. This specific provision of the decree, besides others, asserts the supremacy of the federal government law over any regional law, procedure or decision that is in contravention. The question, therefore, is what is the legal effect of this provision of the proclamation?

Indisputably, the above provisions of the two proclamations signaled the position of the federal legislature, the House of Peoples’ Representative, concerning federal supremacy. However, its stand has no constitutional ground.

As made clear in the constitution, Ethiopia has a federal state structure. In a federation, both the federal and the regional governments are the creation of the supreme law—the constitution. Neither of them is superior over the other, and the division of power between them shall be governed by the same constitution.

Under the Ethiopian federal structure, Article 50(8) proscribes both levels of governments from interfering into each other’s power. One of the issues regulated under the FDRE Constitution is the power to declare a state of emergency. Albeit the issue of state of emergency mentioned under Articles 51, 55, 77, 87, and 93 of the constitution; of which, the principal provision is the latter one. This provision designated the situations when the federal and regional governments can declare a state of emergency.

Accordingly, whereas the federal government has a power to declare a state of emergency when an external invasion, breakdown of law and order, natural disaster, or an epidemic occurs the regional governments can declare when there is a natural disaster, or an epidemic. Moreover, while the power of the federal government to declare a state of emergency has no limit within the geographical boundary of the nation, the regional government’s power is limited within the region only.

Therefore, as argued by Zemelak Ayitenew Ayele in Addis Standard, the power to declare a state of emergency falls within the category of concurrent powers. Nevertheless, the constitution does not incorporate a provision that can address potential conflicts that could arise from such scenarios. Currently, the federal government seems to try and deal with the ambiguity by introducing a supremacy clause via detail laws like the current SOE proclamation.

Legally speaking, this does not hold water, as a federal supremacy clause is not recognized under the constitution. Hence, regional governments can legally challenge the clause introduced through the COVID-19 proclamation. However, this would not be a wise approach as a country, as now should be a time to fight the real danger.  The members of the Ethiopian federation should follow the lesser evil principle and focus on cooperation to defeat the common enemy: COVID-19. In the future, the federal government should reconsider the constitution’s position on supremacy clause, and revise its position accordingly. Or, to avoid further confusion, a federal supremacy clause could be inserted as part of constitutional reforms.