The Making of Ethiopian Constitution of 1995
Assefa A. Lemu, November 11, 2018
Introduction: In its history, Ethiopia got three constitutions: the monarchical constitution which was “given” to the Ethiopian peoples by Emperor Hailesellassie in 1931 and which was revised in 1955 and “re-given” to the peoples, the constitution of the Peoples’ Democratic Republic of Ethiopia (PDRE) of 1987, and the constitution of the Federal Democratic Republic of Ethiopia (FDRE) of 1995. The objective of this article is not to discuss the constitutional history of Ethiopia. Rather, it briefly discusses the process of the making of the current constitution which was adopted on December 8, 1994 and became effective on August 21, 1995.
The current Ethiopian constitution is under attack by various individuals and groups who have their own agenda. Some of these criticizers present the current constitution as a document written by TPLF/EPRDF sitting in a closed door and enacted overnight. The truth of the matter is different from this. Therefore, understanding the processes that the making of the current constitution passed through, the main provisions under criticisms and the alleged basis of those criticisms is important.
The Drafting Process: After taking government power in Ethiopia on May 28, 1991 and ruling the country for one only month as a provisional Government, EPRDF convened a National Conference from July 1 to 5, 1991 (https://www.youtube.com/watch?v=5UkwtgBD8mw https://www.youtube.com/watch?v=e61bzzbJF-k ) and the Conference established the Transitional Government. The Conference also adopted a National Charter https://chilot.files.wordpress.com/2011/11/the-transitional-period-charter-of-ethiopia.pdf ) which served as an interim constitution. The 87-member Council of Representatives of the Transitional Government of Ethiopia established a Constitutional Commission to draft a new constitution to administer the discussion on the draft constitution throughout the country. Mr. Kifle Wodajo who was the Secretary-General of the Organization of African Union (OAU) from 1963 to 1964 and Minister of Ministry of Foreign Affairs of Ethiopia from 1975 to 1977 (http://www.operationspaix.net/775-biographie-de-wodajo-kifle.html ) was appointed as a Chairman of the Constitution. Mr. Dawit Yohanes of Amhara National Democratic Movement (ANDM) who later became the first Speaker of the House of Peoples’ Representatives and served from 1995 to 2005 was appointed as a Secretary of the Commission.
The Constitutional Commission of the Transitional Government of Ethiopia (TGE) had various departments including the Regional Affairs Coordination Department in which the representatives of the nine Regions and two City Administrations worked for about two years (1993 and 1994). The Constitution organized public discussion from the grass root Kebele level to national levels. It also invited selected international constitutional lawyers, political scientist, historians, and other experts in the area to come to Ethiopia and share their experience and provide comments and advice on the draft constitution. The constitution also organized various symposiums and forums on which the main draft provisions were discussed and debated Ethiopians. Various forums were organized for different social groups like women, youth, disabled persons, elders, community leaders, and religious leaders. Unless someone says he or she will not consider the popular discussion in which he or she didn’t take part as a popular discussion, myriads of popular discussions were held on the draft constitution in all corners of the country.
One of the interesting features of the discussion on the draft constitution was that the discussion was conducted article by article. After discussion, the participants voted for and against each provision of the constitution. The votes were given for and against each provision and the votes were compiled at Kebele, District, Zone, Region, and national level. Those compiled results were presented to the Constitutional Commission members and discussed. On those provisions on which the consensuses of the Commission members were not obtained, the reasons of each side or alternative provisions, when available, recorded and passed to a Constituent Assembly elected in 1994 to approve a new constitution for Ethiopia. Those who think the current constitution was not discussed by the peoples in Ethiopia must make fact checking and refer to records. If we argue not to accept a constitution which we didn’t write or for which we didn’t vote or if we turn against it every time we lose our government position, then we will not have one.
Even though, most of the records dealing with the process of constitutional drafting are not available on line, few are available and may give some hints. For example the discussions made by the constituent assembly on Federal flag are available here: (https://www.youtube.com/watch?v=ip5yV1YKmZw ), (https://www.youtube.com/watch?v=AlOP1pbeU68 ).
Main Provision of the Constitution Under Fire:
- Article 39-The number one provision of the Ethiopian Constitution which is under attack is Article 39, Rights of Nations, Nationalities, and Peoples. The proponents of this article say that this article didn’t give new right to the nations and nationalities, but simply recognized the right they have and entitled to. This is the right recognized by the UN in the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations on December 19, 1966. Article 1(1) of the convention says “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf ). However, the antagonists of Article 39 see it as Pandora box to disintegrate the country. Even though the dominance of voice on the Internet may not lead to the actual constitutional change, those who curse the constitution because of Article 39 are more vocal than those who support the constitution because of this same article.
- The Ethiopian Flag– Article 3 (1) of the constitution says “ The Ethiopian flag shall consist of green at the top, yellow in the middle and red at the bottom, and shall have a national emblem at the center”. Accordingly, the Flag and Emblem Proclamation No. 16/1996 (https://chilot.me/wp-content/uploads/2011/01/proc-no-16-1996-flag-and-emblem.pdf ), Proclamation No. 48/1996 Flag and Emblem (Amendment) (https://chilot.me/wp-content/uploads/2011/01/proc-no-48-1996-flag-and-emblem-amendment.pdf ) and Flag Proclamation No. 654/2009 (https://chilot.me/wp-content/uploads/2011/01/flag.pdf ) enacted. The opponents of Article 3 of the constitution, gave different meanings to the logo of the FDRE and the flag introduced by the constitution and subsequent laws and rejected it. The Ethiopian government basically failed to enforce its own constitution and laws in this regard. It is bizarre to see something legal considered illegal and vice versa. Ethiopia is becoming a country where mob makes the law and where the leaders follow the crowd rather than leading the crowd.
Article 3(3) of the constitution of FDRE also authorizes the member states of the Federation to have their respective flags and emblems. However, the pro unitary groups are denouncing having state flags and emblems. Few vocal individuals are trying to give guidance to the government through the TV stations, radios and internet. The majority is simply in the receiving mode. As Plato said “One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors.” That is what we are observing in Ethiopia.
- Article 47, Member States of the Federal Democratic Republic- Article 47 of the constitution lists the member states of the Federal Democratic Republic of Ethiopia and enshrines the right of Nations, Nationalities and Peoples to establish their own States. The same group that attacks Article 39 also attacks Article 47 of the constitution. They advocate for the drawing of state boundaries along the geographic line like rivers, mountains, valleys or imaginary lines like longitude and latitude or economic lines like coffee grower, khat grower, farmer, pastoralist, etc. Rather than explaining what the law says, Ethiopian Government officials became the victims of this argument and adding confusion. For example, Prime Minister Dr. Abiy said “bekililoch mekakel wesen enji dinber yelem”. What is the difference between “wesen” and “dinber”? According to Amharic to English Dictionary, “wesen” is border and “dinber” is boundary. The explanation doesn’t hold any water except trying to play with words. The point is that the top government officials are trying to follow the noise rather than the law. They are trying to jump into the bandwagon of the noise makers rather than standing firm in the right place and attracting them.
- There are other major articles of the constitution that are under attacks including the following:
- Article 40 (3) which says “Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange”. Some want land to be sold like any ordinary commodity.
- Article 45 which says “The Federal Democratic Republic of Ethiopia shall have a parliamentarian form of government”. Some want presidential form of government.
- Article 5 which says “ All Ethiopian languages shall enjoy equal state recognition. 2. Amharic shall be the working language of the Federal Government”. Some want this to be changed and say “Amharic is the official language of Ethiopia”.
- Article 49 which stipulates “the special interest of the State of Oromia in Addis Ababa”.
In Part II, I will discuss the opinions of the proponents and opponents of the articles of the constitution listed under item number 4 above and others. I will also discuss the paradox of the stances of Ethiopian Government officials on the constitution, for example, objecting the principles of the constitution and appointing individuals like Mrs. Meaza Ashenafi who was the Legal Advisor of Ethiopian Constitutional Commission (https://fanabc.com/2018/11/%E1%8B%88-%E1%88%AE-%E1%88%98%E1%8A%A0%E1%8B%9B-%E1%8A%A0%E1%88%B8%E1%8A%93%E1%8D%8A-%E1%88%88%E1%8C%A0%E1%89%85%E1%88%8B%E1%8B%AD-%E1%8D%8D%E1%88%AD%E1%8B%B5-%E1%89%A4%E1%89%B5-%E1%8D%95%E1%88%AC/) , as a head of the judiciary to interpret the law and automatically becomes president of the Council of Constitutional Inquiry per Article 82 of the constitution. Appointing Taye Atsikesellasie Amde who was the member of Forum 84 and Head of the Public Relation Service of the Constitutional Commission as a Permanent Representative of Ethiopia at UN (https://www.un.org/press/en/2018/bio5138.doc.htm ) is also another example. The weird thing is those who attack the constitution are happy about the appointment of such individuals who played significant role in the drafting of that same constitution.
It is very difficult to reasonably expect the government and parliament that do not honor its own constitution and laws to honor human and democratic rights of its citizens. It makes me doubt the truthfulness and integrity of a Head of Government who took the position through parliamentary system and says I wish I was elected by all citizens following presidential system of government. It also makes me doubt the integrity and capacity of the parliamentarians who in 2012 endorsed the appointment of three Deputy Prime Ministers in violation of Article 75 of the constitution which authorizes having only one Deputy Prime Minister and again endorsed the appointment of Head of State (President of FDRE) in violation of Article 8 of Proclamation No. 255/2001 (http://www.fsc.gov.et/content/Negarit%2 … e%20Fe.pdf), Administration of the President of the Federal Democratic Republic of Ethiopia, which instructs “Where the President, before the termination of his term of office, discontinues his service due to illness, death, resignation or due to his conviction, the House of Peoples’ Representatives and the House of the Federation shall, by an extra-ordinary joint session convened by the Speaker of either of the Houses or by the Speakers of both Houses jointly, designate an Acting President”. They keep violating the constitution and other laws of the county and plan to violate more and expect us to keep quite. Even though we don’t own TV or Radio station, we will not remain silent when imminent danger is posed on our rights.
In this part, I will continue the discussion of the major articles of the constitution of the FDRE which are under denigration by the adversaries of the constitution. I will also briefly touch upon some of the paradoxical political stances of the top officials of the Ethiopian Federal Government.
Articles of the Constitution under Fire:
- Article 40 (3) which says “The right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in the peoples of Ethiopia. Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange”. EPRDF has strong argument in favor of this position and the late Chairman of EPRDF and Prime Minister of Ethiopia, Meles Zenawi, said in 2005 election campaign that “land will be privatized in Ethiopia only on the grave of the EPRDF”. So far, the opposition parties and groups that argue for the privatization of land have not been able to win the election and take power to change the land policy in Ethiopia.Some argue that the main problem related to land is not about its ownership, but the way it is administered or managed. They blame the government and EPRDF officials for misusing their authorities in land administration to enrich themselves, to favor their allies by illegally giving them land and disfavoring the others by denying them the right to get land or by taking away land from them. For example, according to Obbo Bekele Gerba, the Secretary General of Oromo Federalist Congress (OFC), government and EPRDF officials used land as a means to buy loyalty and support and to benefit few cronies by violating the rights of the others (https://www.youtube.com/watch?v=YY4EuwFNO_8 ).Even though land is considered as one of the kinds properties, it is neither ordinary property nor ordinary commodity. In most cases, land ownership/ administration involve the intervention of governments in various ways varying from registration to distribution. As Mark Twain and Will Rogers clearly put it, unlike other properties or commodities, land cannot be made again. That is why they say “Buy land, they’re not making it anymore the stuff”.The issue of land ownership has been a bone of contention between EPRDF and those who favor the privatization of land since 1991(Bereket Simon, Tinsae Ze Ethiopia, P.75). Generally speaking, most properties that belong to all, normally administered by the government which is considered the representative of all citizens and has the responsibility to administer public goods and properties on behalf of the citizens of that country. Accordingly, per the constitution of FDRE, Federal Government and State Governments in Ethiopia administer land which is designated as one of the common properties by the constitution. Considering the peculiar history of Ethiopia and existing facts, privatizing land in Ethiopia brings more havoc than benefit. However, improving land administration and utilization is imperative.
- Article 45 which says “The Federal Democratic Republic of Ethiopia shall have a parliamentarian form of government”. Under the parliamentary form of government, the executive leader (prime minister) is elected from the members of the parliament (legislature). The other form of government is presidential system where the executive leader (in this case the president) is elected directly by the people who are eligible to vote.Both forms of government have their own advantages and disadvantages. The parliamentary system which is used by the countries like the United Kingdom (UK) gives a chance for a better coordination between the legislative and the executive branches of government. Under this form of government, the prime minister is a member of a parliament (legislative) and other members of executive branch like ministers can be members of parliament. On the other hand, the presidential system which is used by countries like the United States makes clear separation of power between legislative and executive branches of government. One of the shortcomings of the presidential form of government is that it creates competition and deadlocks when the belief of the president (executive branch) and that of the parliament are different. Some countries like France and Russia use the hybrid form of government where the president focuses on foreign policies and the prime minister focuses on the domestic policies.Prime Minister Dr. Abiy Ahmed’s wish to be elected by the peoples of Ethiopia, rather than by parliament emboldened pro presidential form of government group to find all reasons to criticize the parliamentary form of government in Ethiopia. The reason why Dr. Abiy prefers to be elected directly by the people rather than through representative of the people is not clear. However, the speculation is that he may be questioning either the legitimacy of the parliamentarian or their capacity or he is over estimating his popularity across the country and his chance to win other competitors which we don’t know.
- Article 5 which says “ All Ethiopian languages shall enjoy equal state recognition. 2. Amharic shall be the working language of the Federal Government”. The issue of language has been one of the political agenda in Ethiopia for more than a century and half. Up to 1991, Amharic language and culture had been imposed on all nations and nationalities with the objective of “oneness”. This led to the proliferation of rebellion groups including EPLF, TPLF, OLF, and ONLF who fought for the political and cultural rights of their respective groups. The constitution wanted to put to an end such kinds of imposition and recognized all languages spoken and used by the peoples in Ethiopia as equal. However, the groups that are in favor of the old imposition are lament on Amharic not being designated as an “official” and “national” language of Ethiopia. To avoid competition, they utterly reject the idea of having another working language for the federal government.
- Article 49 which stipulates “the special interest of the State of Oromia in Addis Ababa”. The history of Addis Ababa (Finfinne) is like the Arabian story of “Camel’s Nose”, the camel that first put in only its nose and finally kicked the owner out of his own tent and controlled the tent (http://camelphotos.com/tales_nose.html). The constitution recognized this fact and stipulates how to rectify the historic damage done to Oromo. This year, Oromia got her son to prime minister’s position, but haven’t yet get her constitutional right regarding Addis Ababa.Like that of Ethiopia, the U.S. Constitution mandated the establishment of a federal district called District of Colombia (Washington, D.C.) under the exclusive jurisdiction of the Congress. Like Addis Ababa, Washington, D.C. is neither a state nor a part of any state. The states of Maryland and Virginia each donated land to form Washington, D.C. It has no official representation in both chambers of the Congress- House of Representatives and Senate. Addis Ababa has better political right because it has representatives in Ethiopian House of Representatives, one of the houses of the Ethiopian parliament.Unlike Addis Ababa, Washington D.C was founded through negotiation, not by annexation. Unlike that of Addis Ababa, the boundaries of D.C. are clearly marked. The border between Washington, D.C. and Virginia is marked by the Potomac River and the border between D.C. and Maryland is marked by boundary stones. In case of Addis Ababa, even after 132 years of annexation, it has no clear boundary and keeps expanding year after year into the remaining Oromo lands in its surroundings. These days, the noise we here is not about the constitutional right of Oromia in Addis Ababa, but the unconstitutional voice which says “Oromia out of Addis Ababa” and the silence of those who have the obligation to defend the constitution.
Paradoxical Political Stance:
One of the former presidents of the United States of America, Mr. Harry S. Truman is usually quoted for saying “If you can’t convince them, confuse them”. This shows, creating deliberate confusion is one of the technics politicians use to get power and keep power. One of the means of confusing the people is by having paradoxical political positions. In addition to confusions, some politicians try to be shapeless and colorless like water to fit to all circumstances. Below, we will see few examples where top EPRDF official (s) are creating deliberate confusion and try to be shapeless and colorless to win the support of all groups.
- Citizenship politics– Ethiopian law doesn’t allow dual citizenship. Article 20 (1) of Ethiopian Nationality Law Proclamation No. 378/2003 which was proclaimed to implement Article 6 of the constitution of FDRE that requires the particulars relating to nationality to be determined by law says “Any Ethiopian who voluntarily acquires another nationality shall be deemed to have voluntarily renounced his Ethiopian nationality”( http://www.lawethiopia.com/images/federal_proclamation/proclamations_by_number/378.pdf ).However, Ethiopia is now a country where individuals who renounced Ethiopian citizenship and took the citizenship of another country tries to maneuver the politics and propagate the idea of citizenship/individual right politics (Yezeginet politika) and denounce those who advocate for both group and individual rights. For example, Andergachew Tsigie who invoked his British citizenship when he was arrested in Ethiopia is one of these individuals. Politics is the business of citizens of a given country and citizens have the right to practice whichever political opinion they choose and not prohibited by the laws of that country. The problem is when non-Ethiopian citizens meddle in Ethiopian politics.Dr. Abiy’s speech of October 3, 2018 at the opening of 11th EPRDF General Congress in which he said “ The structure of the Federal Government must consider historical and prevailing conditions of the country. If we are able to entertain without confusing regional administration with national identity, federalism is the preferred form of government for conditions like in Ethiopia. However, the regional administrations must not forget to administer the peoples and individuals living in their region equally”( https://youtu.be/nqwhOBx7krw?t=923) is now referred as an endorsement for changing the federal structure and preference for citizenship/individual right politics. This could be part of the “Medemer” politics for which we have to wait for the publication of Dr. Abiy’s upcoming book, as promised in his speech at Frankfurt stadium, to understand (https://www.youtube.com/watch?v=Gu0DAzbzeAA&t=13s ).In his book “Tinsa’e Ze Ethiopia”, Bereket Simon argues that Ethiopian constitution is based on the principle of “if the rights of citizens are not respected, the rights of communities cannot be respected; if the rights of communities are not respected, the rights of individuals cannot be respected” (p.86). He says Ethiopian constitution respects both individual and group rights on the same weight and focus. According to Bereket, in terms of democratic rights, the constitution of FDRE is much advanced than that of the developed countries that focus only on individual rights and not ready to entertain group rights.
- “Focus on lost sheep”- In the bible (Matthew 18:12) there is parable of a man who left hundred sheep on hill and went to search for one lost sheep. Ethiopian Government officials are like that person. They give more attention to Ethiopians in diaspora than to Ethiopians who live in Ethiopia. This trend is growing since 2005 election and the country reached at the point where Ethiopians living in Ethiopia are buying land from Ethiopians in diaspora who have the privilege of getting urban lands from Ethiopian Government in the expedited procedure. We are also observing when Ethiopian tax payers’ money being spent to host and escort individual Ethiopian diasporas, where the new returnees and holders of foreign citizenship are being given high government posts ( https://www.ethiopianreporter.com/article/13795 ). The theory of “Diaspora vs. Lame Bora” which became popular following the 2005 election and Ethiopian Millennium of 2007 is still around. Meron Getinet described the comparison of “Diaspora” and “Lame Bora” very well in her poem titled “Hagere” (https://www.youtube.com/watch?v=Bh_HYB7VqVs ).
- History- Written Ethiopian history has been under criticism for being unbalanced. In his inaugural speech of April 02, 2018 ( https://www.youtube.com/watch?v=ghDVeUWUyxQ), Prime Minister Dr. Abiy said “Her children wishes Ethiopia to return to her previous status”. Unfortunately, he didn’t explain which one is the “previous status” of Ethiopia to which her children wishes to return to—Menelik’s Empire, Hailesellassie’s feudo- bourgeoisie, or Mengistu’s military controlled socialism? Who are those children of Ethiopia who wish and work hard to take her back to her past status and why? Is taking Ethiopia backward benefits Ethiopian citizens compared to moving her forward? If what the Prime Minister Dr. Abiy said on October 3, 2018 at the opening of 11th EPRDF’s General congress held in Hawassa is true, Ethiopians have no obligation to love Ethiopia of the past, but Ethiopia of the future. He said “It is our right not to love Ethiopia which we received/handed over to us. However, we must not forget that it is our obligation to beautifully shape Ethiopia which we will handover” (https://youtu.be/nqwhOBx7krw?t=923 ). Therefore, it should be clear that there is no obligation and need to take Ethiopia back to her past history and we are not required to have Ethiopia that worships “her creators” as some who claim to be her sole creator wishes (https://www.youtube.com/watch?v=iQm_l3jnSNI ). Rather we need to focus on present and future and march together forward to the bright future.In his first interview as a Prime Minister of Ethiopia, Dr. Abiy listed his heroes and statesmen of Ethiopia (Emperor Menelik II, Lij Iyyasu, Emeror Hailesellassie I, and Mengistu Hailemariam) (https://youtu.be/g4LOh5iaCQU?t=190 ). He gave glory to those who crushed the others, but he didn’t show sympathy to those who were crushed. Such kinds of attempt to impose one group’s history on another and upholding one sided history on which there is no national consensus is rubbing salt into the wounds of the victims.Article 39 (2) of Ethiopian constitution says “Every Nation, Nationality and People in Ethiopia has the right to speak, to write and to develop its own language; to express, to develop and to promote its culture; and to preserve its history”. Like any other nations, nationalities and peoples in Ethiopia, the Oromo people have the constitutional rights to preserve their history. However, those who want only the history of the victorious group to be told are cursing Oromo for erecting Anole victims’ memorial monument. In their opinion, erecting statue for the crusher brings unity and erecting statue for the victim is considered anti-unity action. One of the responsibilities of the government is to protect the weak and the minority and I hope the current Ethiopian Government will discharge that responsibility so that the nations and nationalities preserve their history as enshrined in the constitution.
Conclusion: The opponents of the current Ethiopian constitution almost oppose from its opening (preamble) which says “We, the Nations, Nationalities and Peoples of Ethiopia” to its closing which says “The Amharic version of this Constitution shall have final legal authority”. They oppose the preamble by arguing that the constitution belongs to groups, not to individual citizen, and the people in Ethiopia are single people not PEOPLES. They also oppose the closing by arguing that Amharic is not only “the working language of Federal Government” as indicated under article 5(2) of the constitution but must be designated as “National” and “Official” language of Ethiopia. Even though Articles 104 and 105 of the constitution lay down the procedures for how to initiate amendment and procedures to be followed, the opponents want to trash the constitution in its entirety from A to Z. For example, in 2005 political debate, Professor Mesfin Woldemariam said “In terms of human rights, we know, the value of Ethiopian constitution is less than the value of paper and ink used to write it” (https://www.youtube.com/watch?v=J_p6rIBRXiE&t=269s ). In the recent discussion held on ESAT under the topic of “Ethnic Federalism and its impact on the Ethiopian Economy, Dr. Shiferaw Addisu said the current constitution of Ethiopia was drafted by TPLF and OLF and illegal (https://www.youtube.com/watch?v=yJMaFx4sYGk ). Dr. Shiferaw never bothered about fact checking before blinding trashing the constitution. OLF withdrew from the Transitional Government of Ethiopia in June 1992 and never been a drafter of the constitution.
Ethiopian politics is delicate and there are many gray areas. Prime Minister Dr. Abiy is trying to walk on the tight rope and to navigate through opposing, sometimes extreme and incompatible political opinions. Prime Minister’s attempt to deny the existence of boundaries between States, his wish to change the form of government from parliamentary to presidential, his promise to amend the constitution to limit the term of office of the prime minister to only two terms (https://www.youtube.com/watch?v=nx-PHUUubgA ), Amhara State President Gedu Andergachew’s expressed support for using the flag which doesn’t have the required emblem (https://www.youtube.com/watch?v=UqNcDHA6XZg ) shows that the current Ethiopian constitution is under criticism by both EPRDF officials and others.
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