Blanket State of Emergency Law Requires Proportionality




Two months on from the declaration of the state of emergency and the country now seem to be normalised. Investment activities, which stalled due to the unrest and following extensive property damage, have recommenced operations while negotiating for long term engagements. Small shops and transportation services impacted by the same unrest are now fully functional.

On the other hand, what seems to linger is the collateral damages the country has faced. This includes a country faced with imminent danger related to investment activities and tourist inflows. Citizens too, though they are enjoying their normal day to day activities, are still aware of the lingering derogated human rights, leaving a constant grain of fear and uncertainty. While the whole purpose of the declaration was to ensure normality, waiting another four months for it to end will erode the entire purpose – only serving to create a sense of fear, conveying the incorrect message that there is still an imminent threat to the nation and its people.

Last week, a record 42,000 participants took part in the Great Run 2016. Among them were 300 foreigners – only half as many as the last time. The half-day event was successfully completed – a huge indication that neither the participants nor the law enforcement had any problem with managing a peaceful, colourful and large scale event. The one noticeable thing that do not fully align with the feel of the state of emergency and the huge crowd on the streets was the very ordinary manner and number of police.

Combining the normality of the public’s day-to-day activities and the implication of the state of emergency unearths a certain juxtaposition. Indeed, this calls for a re-examination of the imposed conditions and derogation of some human rights.

In principle states, upon signing the convention of human rights where Countries endorse to respect human rights, have saved room to suspend these rights, envisaging derogation in their constitution. In the case of Ethiopia, one condition is the state of emergency. Certain human rights treaties envisage a system of derogation, allowing the state to adjust its obligations temporarily under the treaty in exceptional circumstances – i.e. in times of public. State of emergency, as an exception, has always had to pass through serious scrutiny on two grounds – the test of proportionality and scope. With regards to the case at hand, the derogation law that came into effect was declared on October 3 in a crude manner, lest the retroactive implementation.

Only after a week and a few days did the Command Post come forward and provide an implementation directive, scoping the derogated rights. This scoping too had major areas of vagueness, with some being clarified along the way on a case by case basis and some yet to be clearly understood. In a situation where the state implements the exception and not the norm, it must be strictly and conservatively defined and implemented.

Proportionality, the other pillar test in examining the relevance of derogation laws, has in most cases been abused in practice – used as a mechanism to suppress citizens in the face of weak pushing factors labelled as the threat to the life of the nation. Despite the different stages and level of violence involved, the blanket national state of emergency was a surprise more so than a relief to some regions, where the violent and destructive waves of protest never took place.

Yes, the cabinet has the constitutional right to declare a temporary state of emergency and derogate certain rights – until endorsed by the House of Peoples’ Representatives. At a point where the executive should have vigorously defended its decision to derogate rights, the lower House endorsed the tabled law without much scrutiny. The constitution too has only put the principle of exceptions forward as a form of derogation. However, the measure of the threat against any quantifiable minimum threshold is not possible. Such is not a gap in the constitution though, but rather the body endowed with the mandate of constitutional interpretation, which should have proactively worked on commentaries that interpret the constitution and make it enforceable on the ground. As a way forward, such lacunae on the constitution should be bridged by the body mandated for the task. The House of Federation pre-emptively interpreted and disseminated commentaries of the constitution, which need to be articulated in the day-to-day activities off the state and the public, which at times seem to deviate at a wider angle from the rationales and outcomes that the constitution intends to achieve.

Internationally, the most important interpretations of how derogations may or may not be undertaken are provided by the case law of treaty bodies, as well as the interpretation adopted by the Human Rights Committee. This states the criteria as, among others, violent internal unrest. But, at the international level “not every disturbance or catastrophe qualifies as a public emergency, it is only if and to the extent that the situation constitutes a threat to the life of the nation”. But one already set as a qualitative measure of the unrest, the damage it causes. The same body puts the measures of proportionality as limited “to the extent strictly required by the exigencies of the situation” – i.e. they need to be proportionate. The requirement of proportionality constitutes one of the substantive limits to the emergency powers “requiring specific scrutiny and specific justification of each measure taken in response to an emergency, rather than an abstract assessment of the overall situation”.

Jurists also suggest that a standard “state of emergency is the counterpart in international law of self-defence in penal law”.

This is all a missed opportunity, which should have been conducted when the derogation law was passed. Now the nation has been stabilised and normalised – in the words of the reports of the Command Post, the constitutional enquiry board and other regional and federal officials – it is high time to measure tests once again, and adjust the conditions and geographic delineations of the implementation of the state of emergency.

Such an approach in the implementation of the state of emergency on proportionality is not alien to the state and Command Post, as it was actually raised by the general attorney. He said that rules under the state of emergency can be implemented in a discriminatory manner depending on the situation on the ground.

Different official ministries and regional authorities have moved to reassure the public. Accordingly, 21 flower farms have commenced operations again. However, the last fiscal year quarter shows stagnant growth in Foreign Direct Investment. Most factories in the Oromia region, which were partially damaged, have also recommenced operations. The Command Post too had reported that it had over 11,000 people under unrest nationwide, while an equivalent number were released after advice and briefings.

In reference to the official reports and realities on the ground that many of the country’s regions have gone back to normality – even to the extent of hosting open street rallies – and the adjustment steps taken by the Command Post based on principle of proportionality, It is high time to cease the state of emergency and derogation laws.

Imposing the necessary evil in contexts where it is not necessary has more cost than gains. While it keeps the element of uncertainty in the citizens, it directs a dark light on the motives behind the derogation. This idea of an exceptional situation and the state’s need to defend itself is underpinned by an unusual balance between the collective’s interests, which is not supported by practical evidence, against the backdrop of official stabilisation reports.

Lifting the measures at the right moment, on the other hand, not only relieves the people and allows them to enjoy their basic constitutionally-endorsed human rights without a tint of fear, but also revamps some socio-economic activities and engagements. This is predominantly true of the tourism sector and foreign direct investment, which have slowed down as a collateral damage of the state of emergency and the message it conveys globally.

Now the country is considerably safe and normalised, it should be time to cautiously ease the temporary suspension of some rights on a rolling basis, beginning with the capital and other major cities. This is not to argue that, like the blanket fold declaration, the shift should be universal, but rather on a proportionality basis. In areas, such as the industrial parks, which were affected by the civil unrest, and certain areas of the country, the measures are still very much required. In the meantime, the country’s almost 100 million population should not be held hostage.



Published on Nov 29,2016 [ Vol 17 ,No 865]


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