The very idea of convening 2012 election as per the constitution has been the bone of contention since the assumption of the premiership in the last 2 years. The appetite on the side of the government on holding an election was exceptionally low. And even after the decision of convening an election was reached out of inclination, the decision of holding the election on 29 August 2020 was in apparent contradiction with the FDRE Constitution.
As per article 58 (3) of the Constitution the term of office of Members of the HPR expires on Sene 30 not in September; and that is why elections had been held in the previous elections in May. Hence, ccognizant that the preparations by National Electoral Board of Ethiopia (NEBE) were behind constitutional deadline even before the pandemic arrived, its announcement on 31 March 2020, citing the ongoing and projected impacts of the COVID-19 pandemic was as a windfall excuse for not holding an election at all. The dynamics is further exacerbated with the declaration of a five-month State of Emergency on 8 April 2020 due to the pandemic begs the question of the legitimacy of declaring a SoE for 5 months with a government whose mandate expires in 2 months.
With these contexts, to address and limit the damages consequential to legitimate leadership vacuum both at the Federal and Regional States level, options such as a consensual dissolution of the Parliament by the Prime Minister, a state of emergency decree, amendment of the constitution, and political elite bargain, are being explored. For the purpose of this article, the options of dissolving the Parliament is well explained. And with a slim possibility of holding an election in different arrangements and modes, this opinion piece is restricted to assessing possible options from a constitutional and legal perspective.
Declaring a State of Emergency
The other “option” of declaring a state of emergency, in accordance with Article 93 of the Constitution is both undesirable and dangerous route for the following reasons. First, the grounds for declaring a SoE are an external invasion, a breakdown of law and order which endangers the constitutional order, and which cannot be controlled by the regular law enforcement agencies and personnel, a natural disaster, or an epidemic. Apparently, expiry of term of office of Members of the Parliament, including the Prime Minister are not grounds for declaring SoE. Second, it is unconstitutional to think of extending the SoE before the already duration is not expired. Third, the SoE assumes a Parliament within its term and do not have the effect of extending term of office of neither the Parliament nor the members of the Council of Ministers.
For some amending the Constitution, particularly, those provisions that require relatively less stringent amendment procedure (Article 58 (3)), even though approval of six out of nine regional states and two-thirds majority of a joint session of the houses of the Federal Parliament can be secured; to initiate an amendment (article 104), any proposal for constitutional amendment should be submitted for discussion and decision to the general public and to those whom the amendment of the Constitution concerns. Given the very justification for the postponement of the election is inability of convening public forums, convening the actual election is more feasible than initiating constitutional amendment from matter of practicality. Second, as members of the HPR are agents of the Nations, Nationalities and Peoples of Ethiopia (8(3) and 54(4)), an attempt to amend the constitution to extend their term of office is against the pprinciple of agency by “entering agreement with oneself” poses a clear conflict of interest and is unconstitutional.
The House of Federation is mandated by the Constitution (Article 62 (1) to provide authoritative interpretation of the Constitutional. This has also the following limitations. First, the House does not involve on speculative hypothetical interpretations and its mandate is limited to when a constitutional dispute is submitted (Article 83). Until now no formal constitutional dispute is submitted and cannot be triggered in this scenario. Second, as the “golden rule of constitutional interpretation” prescribes as the provisions of the constitution are crystal clear there is not the need of interpreting a constitutional provisions with the sole purpose of creating new laws under the guise of constitutional interpretation. Hence, now where there is not dispute formally submitted, constitutional interpretation is not only hypothetical academic exercise but also an attempt of creating new facts out of thin air.
What other alternatives then?
Strengthening and Mandating the House of Federation
Institution building is a continuous process and crisis times like we are excellent reminders of the central role of strong, independent and dynamic institutions. And to minimize the damage of the looming legitimacy crisis, strengthening and mandating the House of Federation would be an area to consider for the following constitutional grounds.
In accordance with article 8 (1) and (2) of the constitution, all sovereign power resides in the Nations, Nationalities and Peoples of Ethiopia; and the Constitution is an expression of their sovereignty. As per article 61 of the Constitution the House of the Federation is composed of representatives of Nations, Nationalities and Peoples; and each Nation, Nationality and People shall be represented in the House of the Federation by at least one member and by one additional representative for each one million of its population.
Even though the term of mandate of the House of the Federation is five years, as members of the HoF can be elected by the State Councils themselves, the respective State Councils of the Regional States can nominate members of the HoF before the term of their respective State Councils expire. This will not only serve minimizing the damage as a result of legitimacy crisis but also preserving a functioning institution in case a constitutional dispute emerges and other related mandates.
Explore the option of holding elections by Regional States
The Constitution prescribes for the establishment of a National Election Board independent of any influence, to conduct in an impartial manner free and fair election in Federal and State constituencies. First, the reference to Federal and State constituencies refers to election constituencies that are held to the HPR; and does not incorporate elections to be held to the State Council of Regional States. Second, as it can also be seen from Article 4 (2) of “The Ethiopian Electoral, Political Parties Registration and Election’s Code of Conduct Proclamation No. 1162/2019”, a Regional State can enact regional elections laws that pertain to regional council elections; and the only thing it is expected is to confirm its laws with relevant elections provisions of the Constitution and aforementioned Proclamation. Third, the Constitution impliedly assumes Regional States will establish similar Regional election institutions. When we see article 47 (3) (b) the Council that received the demand for statehood is mandated to organize a referendum within one year to be held in the Nation, Nationality or People that made the demand. In the recent case of Sidama statehood referendum the NEBE stepped in due to the non-establishment of regional institution by the SNNP Regional State.
In this regard, a practical issue has emerged following the announcement by the Regional State of Tigray to hold its election. Given the circumstances and justifications this is within the constitutional mandate and should be encouraged. However, to hold elections for the 38 seats in the HPR, there is the need to get the delegation of power of the NEBE. Hence, to limit the damage of the legitimacy crisis, a coordinated action of the stakeholders is an election to hold a Regional State level election should be leverage the room for experimentation the federal system provides.
The President may be provided a role to play
The President is the Head of State, elected by a joint session of the HPR and the House of the Federation by a two-thirds majority vote, with a term of office of six years. Though the President has not constitutionally mandated executive power, as a matter of practice it has been actively engaged on executive responsibilities beyond the its powers stipulated in the Constitution. And after the expiry of the term of the HPR, including the Prime Minister and Deputy Prime Minister, entrusting the President to conduct the day to day affairs of government and organizing new elections, without enacting new proclamations, regulations or decrees, nor may it repeal or amend any existing law, maybe explored as a political compromise.
In conclusion, with a slim possibility of holding an election in different arrangements and modes, the looming legitimacy crisis should be addressed comprehensively both at the level of the Federal and Regional levels, with an authoritative course of action with an adequate focus on strengthening existing institutions, to limit a potential consequential damages.