Is Tigray’s COVID-19 state of emergency constitutional, practical?

Is Tigray’s COVID-19 state of emergency constitutional, practical?

by Dejen Yemane

Ethiopia needs a unified response to the pandemic, not overlapping emergency decrees

(ethiopia-insigh)–The controversial Ethiopian constitution has once again become a subject of debate—this time due to the global pandemic.

COVID-19 led the federal and regional governments to act to try and contain its spread. This has raised two constitutional questions. The first is an imminent legitimacy problem due to the postponement of elections past the end of parliaments’ terms. The second is whether federal states can declare regionwide states of emergency to combat what is potentially a nationwide pandemic.

This debate is triggered by Tigray Regional State’s declaration of a state of emergency on 26 March, which was describe as unlawful by Prosperity Party’s leader in the region, Nebiyu Sihul Mikael, although he did not explain his reasoning. Furthermore, Mekele has been at loggerheads with Addis Ababa for more than a year, resisting a federal arrest warrant and rejecting a federal boundary commission. Arguably, the regional emergency decree was another political display of autonomy.

In contrast to the federal government stance, Amanuel Assefa, head of Tigray’s Attorney General Office, has said that the federal state of emergency’s application is conditional on its compatibility with the regional one. Not only is this questionable, but it is arguable that federal states have no legal authority in the first place to declare a regional state of emergency for a national crisis. At the very least, the House of the Federation should fulfil its constitutional mandate and take it upon itself to examine the issue.

Rather than via a separate state of emergency, region-specific measures could come under the auspice of the federal state of emergency announced on 8 April, which the Prime Minister’s Office has said will be flexible and, if necessary, geographically variable. Ultimately, to fight a nationwide epidemic, the federal government should take the lead, and regional states should align with the center when it acts, as it has now done.

Had it not for Tigray’s political motive, the region could have consulted with the federal government and pushed for an earlier nationwide state of emergency, rather than forging ahead with its own. For example, since the federal decree, Amhara and Oromia regions have dropped travel bans put in place before its enactment. Now they are cooperating with the Ministerial Committee established by the proclamation.  Tigray could—and should—do the same.

Instead, on 9 April, it extended its state of emergency from 15 days to three months. As a result, there is now a risk that Tigray’s government contravenes the federal decree. For example, federal emergency regulations prohibit officials from making statements about the pandemic without the ministerial committee’s permission—will that apply to Tigray’s administrators when they make statements relating to COVID-19 and the regional state of emergency without gaining federal permission? Meanwhile, on 16 April, the federal transport authority announced the re-starting of inter-regional transport, but Tigray’s state of emergency requires everyone who enters the region to stay in quarantine for 14 days.

Some specialists argue that the federal constitution does not constrain regional governments’ power to decree a state of emergency for an epidemic that potentially will have a possible nationwide impact. But it should be considered here that states of emergency limit individual rights. Letting regional governments implement a state of emergency on a nationwide issue means those rights are constrained by multiple government action. This is undesirable.

In addition, most regional powers under the federal constitution can be suspended under a federal emergency decree, other than self-determination. Also, the normal understanding of the equivalency of federal and regional laws does not apply under a federal state of emergency. Both the proclamation and regulations issued by the Council of Ministers override most regional laws during an emergency. In this regard, it should also be noted that Article 93 even technically empowers the federal government to suspend states’ right to decree regionwide states of emergency—although some regional leaders might well consider that a breach of their non-derogable autonomy rights.

Finally, from a practical rather than legal point of view, when federal and regional governments declare parallel states of emergency, it is inefficient. Instead, a coordinated national response is required for an unprecedented crisis like this global pandemic.