The fourth-term of members of the Ethiopian parliament resumed its fourth year session last Monday. They appointed yet another familiar figure of the ruling party, Mulatu Teshome (PhD), as the new president. He had previously been a government official and diplomat.
Both the outgoing and the incoming presidents delivered a farewell and opening address, respectively, to the joint session of the House of Peoples Representatives and the House of Federations. Essentially, these praised government policies and past performances, purported to share experiences and provided the advice and stated support required by MPs.
Contrary to previous practices of announcing, among other things, the annual work plan of the Parliament in law making, which seems to have ceased over the last few years, the inaugural speech of the new president was not substantially different from the usual rhetoric presented by executive officials. In fact, at several points of the speech, mentions were made of the support required from Parliament to the executive. Accordingly, the forthcoming preoccupation of Parliament appears to be not on law makings per se, as no such plan has been specifically announced.
It has been repeatedly stated that the type of the current system of the government is a parliamentary system of government, whilst state power is claimed to have been “separated” into legislative, executive and judicial powers. Indeed, the Constitution underlines that “the Parliament is the highest authority of the federal government”.
It is also the supreme legislative organ of the state, constitutionally mandated to issue federal laws of nationwide application and, in some cases, laws applicable within the federal territories. Before assuming their responsibility into the highest organ of the Ethiopian state, to make laws by which citizens are governed, members of Parliament are elected directly by the electorate every five years. This is done “on the basis of universal suffrage through direct free and fair election held by secret ballot”.
Upon their election, these parliamentarians are constitutionally required to be the “representatives of the Ethiopian people as a whole” and are to be governed by and obedient to the Constitution, the will of the people and their conscience.
For me, compliance with the stated requirement of the Constitution in the normal conduct of the elected parliamentarians nominated by his party is, however, a far cry from such guidelines. The party mobilises its resources and energy in recruitment, selection, nomination and, finally, in the election of a member of Parliament.
Notwithstanding the constitutional provision, undoubtedly the allegiance of the MP is primarily to his party. On the basis of the so-called “party discipline” and “democratic centralism”, not only votes, but even the speech and opinion of the MP is monitored. In fact, it has been repeatedly insisted by EPRDF bigwigs that a member of the EPRDF is like a soldier that obediently enforces what the party instructs him/her to do.
In such circumstances, it is highly precarious that the conduct of MPs would comply with the above mentioned prescription of the constitution to the MPs of the EPRDF. This is also true of its allies, who have similar party platform that constitute the overwhelming majority of the incumbent parliament. Therefore, it continues to be the hardest exercise for party nominated MPs to harmonise their party discipline and allegiance with their expected disposition under the constitution.
Mainly for this reason, MPs of the EPRDF have, by and large, used the same language and the same vote; even their amusement is a shared one. Loyalty and obedience to party discipline and higher party officials is quite obvious.
This situation has resulted in monotony in most of the works of Parliament. There is a dire need for a different opinions and approaches. Accordingly, it becomes a big wonder whether something different is to be observed in the speech or action of any EPRDF MP.
Following the death of the former Prime Minister Meles Zenawi, it appeared to some commentators that MPs began to assert their constitutional power. This was rather than focusing on positive voting, silently listening to reports, speeches, arguments and sometimes giving approval through a warm clap and, of course, laughter. As if any concrete action has been taken in accordance with the law against executive officials, by the mere fact of its power of questioning and taking some measure to remove or demote officials, it is recalled that some have even gone to the extent of concluding thatEthiopiahas developed a “working and biting parliament.”
To a larger extent, this scenario is attributable to the absence of loud opposition voices. Ironically, however, the seeds of a motionless and voiceless parliament were sown in 2001, at a time when a large number of opposition MPs were present. Accordingly, the opposition and EPRDF MPs connived and acted together to legally forego a non-delegable mandate given to them by the Ethiopian electorate.
The famous English philosopher, John Lock, wrote in his book entitled, “Second Treatise of Civil Government” that “the legislative cannot transfer the power of making laws to any other hands. For it being but a delegated power from the people, they, who have it, cannot pass it over to others…. and when the people have said, we will submit to rules, and be governed by laws made by such men, and in such forms, nobody else can say other men shall make laws for them; nor can the people be bound by any laws but such as are enacted by those, whom they have chosen, and authorised to make laws for them”.
Having analysed the issue, he further concluded that – “The power of the legislative being derived from the people by a positive voluntary grant and institution, can be no other, than what the positive grant conveyed, which being only to make laws, and not to make legislators, the legislative can have no power to transfer their authority of making laws, and place it in other hands”.
What Lock and other philosophers have elaborated on, regarding the delegation of power by the people to parliamentarians, has been disparaged by members of the Ethiopian parliamentarians since 2008. The Definition of Powers & Duties of the Federal Democratic Republic of Ethiopia (amendment) proclamation, issued in 2008, and another proclamation issued on the same subject in 2010 empowered a law making authority to the Council of Ministers. Here “it finds it necessary to reorganise the federal government executive organs by issuing regulations for the closure, merger, or division of an existing executive organs or for change of its accountability or mandates or for the establishment of a new one.”
In effect, extraordinarily, these proclamations transferred the law making power of the parliament pertaining to the executive organ. This means that members of the Ethiopian Parliament nominated by the ruling or opposition parties alike, who were supposed to engage in making laws by which the Ethiopian people are expected to be governed, reassigned such responsibilities to officials of another branch of the government. This allowed it to make its own laws and to determine its own organisational powers and responsibilities. The council of Ministers is even empowered to introduce any change on executive organs established by a proclamation issued by the parliament.
Accordingly, numerous government offices previously established by a proclamation issued by parliament, such as the National Lottery Administration, the Ethiopian Roads Authority and the Ethiopian Quality & Standard Authority, have been reorganised by similar or even different organs by regulations issued by the Council of Ministers. These regulations even further transferred all rights and duties conferred to previously established institutions to the newly established ones.
As a result, powers granted by Parliament to institutions by proclamations – higher laws – has been allowed to be taken and hijacked by newly established or reorganised organs using regulations – lower laws. Arguably, the establishment proclamations these institutions issued through Parliament were rendered impotent, generating endless legal controversy as to whether such laws are alive or dead, in light of the principle of hierarchy of laws.
Emboldened by a wanton empowerment of Parliament, the ever overzealous Council of Ministers went much further in the case of the regulations to provide for the establishment of the National Lottery Administration. They hijacked a power that can never be given away, and exclusively reserved to Parliament the issuance of penal laws. These entail the deprivation of liberty and property, up to five years of imprisonment and a fine of 20,000Br.Under these regulations, the Council has even gone on to nullify laws issued by Parliament, including the Ethiopian Criminal Code.
“All laws, regulations, directives and practices inconsistent with the provisions of this regulation shall have no effect on matters covered by this Regulation”, provides the establishment regulation of the National Lottery Administration. Thus, article 789 of the Criminal Code of Ethiopia 0 a higher law in the hierarchy of Ethiopian laws, which offers favourable penalty to persons accused – has been rejected as “inapplicable” in violation of the Ethiopian Constitution, accepted legal principles and any other legal teaching and philosophy known to me.
The foregoing regulations are just one example of the legal mess thatEthiopiahas currently found itself in with regards to law making. It is, therefore, no surprise that the newly elected President refrained from mentioning a token bill to be proposed, deliberated and approved by the parliament. Unashamedly, the government whips in parliament presented a “motion of thanks” for the approval of what she claimed in her submission “principal issues that incorporates detailed matters, the fourth round house of representatives ought to carry out in the inaugural speech” of the president.
In reality, the speech was nothing but previous government work performance report and achievements along with the support required and expected from Parliament to ensure continuance. It remains to be seen how the requested “motion of thanks” will be accepted as the annual work plan of the MPs. On my part, I have no doubt that it will not be approved unless a very surprising development, extremely rare in the annals of our parliament and particularly among the EPRDF MPs, could happen to push them tp exercise their constitutional obligation to honour the Constitution.
Although these emerging developments were not covered in their study, it was fitting for the independent consultants that had carried out “A Comprehensive Justice System Reform Program” to include in their base line study, in 2005, that “almost all Ethiopian authorities and experts we met expressed concern that the current procedure for drafting, adoption and implementation of laws and other legal texts of legislative or regulatory nature were leading [the country] to a fragmentation of the legal system, a severe lack of coherence between legal norms and the conflict of legal provisions and norms was creating a severe uncertainty.”
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