The Africa Report
Until consensus emerges, reform of the constitutional framing of ethnic diversity is hard to contemplate.
Following Abiy Ahmed’s assumption of the premiership in April 2018, several legal and political reforms have been introduced in Ethiopia, with others being debated in various forums.
But the most controversial subject raised during several recent seminars and workshops has been the 1995 Ethiopian Constitution.
Two polarised views have emerged:
The first view is that the Constitution is a sacred document that should be left untouched since it helped usher a democratic order into the country and allowed the rights of hitherto marginalised ethnic communities to be respected.
- This view is generally held by members and supporters of the Ethiopian People’s Revolutionary Democratic Front (EPRDF), and the Tigray People’s Liberation Front (TPLF), in particular. Other groups that concur with TPLF’s diagnosis of the root causes of Ethiopia’s political problems (ethnic-based oppression) and its solution (ethnic federalism) also support this view.
On the other extreme there are those who deem the Constitution to be the source of all evil in Ethiopia, especially the grisly inter-communal conflicts that keep occurring in different parts of the country. In this group are those who claim to be liberal democrats, and advocate for what they call “citizenship politics”.
- For this group, the Constitution is unsalvageable as it has been tainted by EPRDF’s Stalinist ideology.
- They also claim the Constitution enjoys little support from the Ethiopian people and maintain that a constitution, while above all other laws, is beneath the people who made it. They argue that it is thus appropriate to rescind the Ethiopian Constitution altogether, even extra-constitutionally, and replace it with a new one.
- In fact, this group of people consider rescinding the Constitution as the only way out of the political quandary facing the country and do not envision a constitutional amendment processes as an option for improving it.
No consensus for reform
The reason is that the Constitution is designed in such a way that the most problematic aspects of it — those pertaining to the management of ethnic diversity — can be changed only through unanimity. But at this stage consensus cannot be secured.
Both views on the Constitution seem not only flawed, but also unhelpful in terms of moving the country towards a democratic order.
Contrary to the claim of its proponents, the Constitution is far from taintless. The ideological underpinnings and historical assumptions upon which it is based, as well as the institutional mechanisms that it has adopted for dealing with historical inter-communal hostilities, remain divisive and contentious.
Yet, simply getting rid of it would be wrong for at least three reasons.
- The proposal to annul it is premised on the supposition that the great majority of Ethiopian people support this idea, even though there is no credible evidence to back up this claim. Quite to the contrary, there are numerous communities that feel empowered by this Constitution and who seek to maintain it.
- Annulling the Constitution means returning to the old political habit of employing unconstitutional methods to replace one constitutional system with another; which is something we desperately need to distance ourselves from.
- A transition to a democratic order is likely to rest on firm ground when it is based on the rule of law. Rescinding the Constitution will be against this principle. It should be noted that the process of transition is as important as the end result. This is why South Africans refrained from simply scrapping the laws from the apartheid era and ensured that their transition to democracy was founded on rule of law.
What is then to be done with the current Constitution?
For the short term, introducing a major change to the Constitution might not be possible given how rigid it is and how politically polarised the country is at present.
However, constitutional practice that eschews strict adherence to the most problematic clauses in the Constitution may be useful in terms of minimising problems associated with the latter.
- Judicious constitutional interpretation can especially be useful in this regard.
Bottom line: In the meantime, the process of constitutional and political bargaining should continue until the Constitution takes a shape and texture agreeable to the great majority of Ethiopians.