COVID-19 state of emergency and the federal balance of power
(ethiopia-insigh)–Last week, Ethiopia’s federal government declared a national state of emergency to help deal with the coronavirus pandemic. The impact of the declaration and the extent that it would limit the day-to-day life of Ethiopians are, however, far from clear.
In an explanatory statement, the Prime Minister’s Press Secretary, Billene Seyoum, highlighted that with the COVID-19 pandemic “there are a lot of shifting variables and dynamics that this health crisis introduces which cannot be treated and addressed under a blanket state of emergency which is a uniform over time.” She added that the decree is “to prepare the foundation for subsequent binding regulations that will be set by the federal government assessing these various shifting trends and dynamics that the virus will entail.”
These statements raised concerns, particularly in relation to the ‘principle of legality’ as there is insufficient precision and clarity on the measures and restrictions to be imposed, although some measures have now been announced by the Attorney General’s Office.
But arguably even more striking was the Press Secretary’s statement that: “in the event of any contradictions between the [state of emergencies declared by the federal government and regions], the federal state of emergency supersedes regional state of emergencies, unless the regulations decreed by regions reflect much more stricter measures in mitigating the virus.”
Similarly, Article 3 of the federal state of emergency decree provides that “any federal or state law, decision or practice which contravenes the emergency declaration shall be of no effect.” It appears that “any state law” here includes regional state of emergency decrees.
This raises the issue of constitutional validity, including the overall Ethiopian federal arrangement. The position that the federal government’s state of emergency overrides existing or future emergency declarations by regional states brings into question the federal-regional balance of power.
Both federal and regional governments have the power to declare states of emergency under Article 93 of the FDRE constitution. The federal government through the Council of Ministers can declare an emergency in the event of external invasion; a breakdown of law and order that cannot be controlled by the regular law enforcement agencies; natural disaster; and an epidemic. The emergency could either be nationwide or geographically limited.
Likewise, regional states through their executives have the power to proclaim “a state-wide emergency decree” in the event of a natural calamity or epidemic. Unlike the federal government, regional states do not have the power to declare an emergency due to external invasion or breakdown of law and order that endangers the constitutional order.
At regional level, although a number of measures have been taken to prevent the spread of COVID-19, it was only Tigray on March 26 that enacted a region-wide state of emergency. Amhara imposed a lockdown in Bahir Dar and other three towns of Awi Zone where there have also been confirmed infections. A complete ban on public transport entering the region was imposed by the regional executive. Similar travel restrictions were applied in Oromia and Southern Nations. Legally speaking, all these measures should have been employed under the framework of an emergency declaration.
The federal decree is applicable also in Tigray, which means that two state of emergencies will overlap. The Tigray emergency is for three months while the federal state of emergency is for five months. This is not a problem by itself. The problem is whether Tigray region will apply the federal decree for the remaining amount of time after its own measures expire. Also in terms of content, the federal decree incorporates measures that are not envisaged in the regional decree. We will see how this will be managed.
Parallel applications could also happen in other regional states if they make emergency declarations in the future. Double states of emergencies do not seem to be unconstitutional as long as they do not contradict each other. But inconsistencies appear somewhat likely given political differences between regional governments such as Tigray’s and the center. Also, the commitment to implement the federal government’s declaration may be minimal in Tigray.
The Press Secretary’s claim that the federal decree supersedes regional ones was presumably designed to pre-empt such controversies. She clarified that “regions cannot necessarily minimize the state of emergency regulations where federal government state of emergency is deemed much stronger and stricter.”
Lack of respect?
The assessment of federal superiority is based on Article 50(8) of the constitution which describes the structure and division of power between the central government and regions. The constitution provides that “the states shall respect the power of the federal government. The federal government shall likewise respect the power of states.” This issue of the balance of power between unity and diversity is in fact one of the most debatable issues in federalism studies.
While some systems empower the federal government, others tend to give regional states equal power. The power-balance dynamics in the Ethiopian federal system, on the other hand, have not been clear. Some experts in federalism studies have argued that Ethiopian federalism “silently passes over the issue of the matrix of the relationship between unity and diversity.”
What is at least clear in the constitution is that the central government does not have an overly dominant role in the federation. Federal supremacy is not clearly endorsed in the text. In practice, however, regions are always a second tier of administration, and I think the above interpretation regarding federal superiority over states of emergency application comes from this orientation.
Therefore, the federal government’s position that “federal decree supersedes regional ones” looks like a misreading of Article 50(8) and the general context of the FDRE Constitution, which calls on the center to also “respect the power of the states.” Rather than making an executive decision, the government could at least have resorted to constitutional interpretation by the House of Federation, although this option is not ideal given the urgency of the issue.
Still, you could argue that the constitutional provisions dealing with the federal-regional division of power and structure, including Art 50(8), are suspended by the emergency declaration itself. It is clear that Chapter 5 of the constitution, which talks about the division of power, is not among the non-derogable section of the constitution pursuant to Article 93(4)(c) of the same law. It can be suspended under a federal emergency decree to the extent necessary to avert the conditions that required declaration. Therefore, the federal executive’s decision to the contrary would not be considered as constitutional violation.
The problem with this argument is that it would take Ethiopia into a kind of temporary unitary system of government. Notably, Article 1 of the constitution, which establishes “a Federal and Democratic State structure”, is among the provisions that cannot be suspended during state of emergency declaration as per a cumulative reading of Article 93(4)(b) and (c). The federal nature of the State is no way derogable even in emergency periods. Thus, the potential counter-argument posited does not appear to be valid.