Unconstitutional Declaration of Unconstitutionality

Following receipt of recommendation from the Council of Constitutional Inquiry (CCI), the House of the Federation (HoF) – the constitutional institution authorised to interpret the constitution – recently declared two articles of two separate proclamations null and void.

The first, Article 8/1 of Proclamation Number 25/1996, states that “offenses for which officials of the Federal Government are held liable in connection with their official responsibility” fall under the “first instance jurisdiction of the Federal Supreme Court”.

The other, Article 7/1 of Proclamation 434/2005, states that, “The Federal High Court shall have first instance jurisdiction over corruption offenses falling under the jurisdiction of the federal government, other than those cases for which the Federal Supreme Court has first instance jurisdiction in accordance with the relevant law”.

In the recommendation, the CCI claims that it undertook investigation following receipt of a referral forwarded by the Federal High Court. The Court made the referral because the judges felt that they needed to secure constitutional interpretation before the court proceeded to hear the case involving Melaku Fenta, a former high ranking government official.

In the same recommendation, the CCI held that the two articles cited above were unconstitutional because they violated a person’s right to appeal, provided for under Article 20/6; the right to equal treatment before the law stipulated under Article 25 of the Federal Constitution and Article 14/5 of the International Covenant on Civil & Political Rights (ICCPR).

The recommendation further claims that the CCI had conducted the required investigation and determined that the Federal High Court had first instance jurisdiction and the Federal Supreme Court appellate. Finally, following the receipt of the recommendation, the House debated and ultimately declared the above cited articles unconstitutional.

To learn that there is a functioning constitutionally established institutional process designed to address unconstitutionality issues, as demonstrated in the instant case, is quite encouraging. To also learn that this very process could casually be initiated and unquestioningly pursued, however, defeats the very purpose of the whole process it is intended to serve. And here is why.

As reported in the media, the Federal High Court, in one of its most recent hearings, proudly declared that it was the court and not the defendant that questioned the constitutionality of the articles, framed a constitutional issue and referred it to the CCI for investigation. If the defendant in the case did not challenge the constitutionality of the articles, it is certainly puzzling why and how the High Court on its own initiated and consummated such a referral.

Like many other courts, the main job of the Federal High Court is the adjudication of disputes brought to court by parties to litigation. In going about doing its job, the Court would ordinarily want to first establish jurisdiction – whether there is a dispute and the Court has authority to resolve it.

If the Court determines that it indeed has jurisdiction, it assumes and hears the case. If it feels it does not have jurisdiction to hear the case, it dismisses the case for a lack thereof.

Then, the party aggrieved by the decision, will, if it so wishes, entertain its right to lodge an appeal against the court’s decision. In one word, the court either does have jurisdiction or it does not. There is no constitutional procedure that provides for a middle ground, at least in this case, where the court, on its own initiative and in the absence of a dispute, could frame an unconstitutionality issue and refer it to the CCI. This, however, does not mean that the court cannot process a referral.

On the contrary, the court has the authority and duty to entertain referral, if the condition set forth under Article 84/2 of the federal constitution is met. It states that “where any Federal or State law is contested as being unconstitutional and such a dispute is submitted to it by any court or interested party, the Council [CCI] shall consider the HoF for a final decision”.

The key words in this article are ‘contest’ and ‘dispute’. While the Court could make a referral to the CCI, it needs to first ascertain that there is a contest or dispute. Put differently, where there is no dispute there is no issue to refer for resolution.

In the case that involves Melaku Fenta, in light of the two articles cited above, the High Court should have declined jurisdiction because those articles clearly deny it jurisdiction to hear the case. If the Court had declined jurisdiction, as it should have, the aggrieved party would either have appealed the decision or disputed the decision on the grounds of unconstitutionality. It is when the Court is presented with such a dispute that it gains authority to frame an issue and channel the same to the CCI for investigation.

It is not difficult to imagine moments where judges in courts of law, in going about their routine, feel the need for constitutional interpretation to better advance the interest of justice.

One can readily sympathise with such noble sentiment of such judges, except that not only does the law risk being dependent on such feelings, but also those perfect intentions can sometimes precipitate disastrous outcomes. The question of how deeply judges may feel such a feeling alone cannot accomplish anything legitimate.

In this regard, if one of the parties did not come out and present the kind of challenge that such judges could contemplate and the challenge turns out to be such that it justifies triggering the referral procedure, the judges hands should remain tied up. This is why it should be emphasised that the Melaku case, regardless of the feelings of the court, should have first endeavoured to identify a dispute, adequate in forming the legitimate basis necessary to frame a proper unconstitutionality issue.

It is obvious that, in this case, the prosecutor would not have issues with the court because the prosecutor was the one who chose the forum. It was, therefore, only Melaku who could have turned this seemingly innocuous question of jurisdiction into the kind of constitutional nightmare it turned out to be. What was even more dramatic, according to media reports, was that Melaku’s lawyers went out of their way to motion the court to reprimand and order the media to refrain from wrongly reporting that it was Melaku who had questioned the constitutionality of the proclamations.

The Court agreed with the lawyers and declared that it was not Melaku that moved the court to initiate referral. It continued to emphasise that it was the Court, on its own accord, that had turned the wheel of justice in the direction of the CCI. It felt like the Court was ushering in a totally new constitutional procedure, where a court of law could act without real issues.

But a real court of law is not a school of law, where constitutionality issues could be theoretically considered and resolved. A real court is not a moot court either, where hypothetical issues are framed for hypothetical trial crafted to obtain a hypothetical judgment. A real court is an authority where real disputes are objectively, lawfully and decisively resolved.

If there is no dispute, there is no standing, and the Court has no authority or mechanism whatsoever to do anything to set the procedure of referral in motion.

Under a constitution of constitutionalism, where power is divided, limited and controlled, it is a settled constitutional principle that the constitutionality of a legislative or executive act is to be presumed and unconstitutionality entertained only when an adjudicator has reason to believe that there is real, actual, vital and earnest case or controversy that warrants such resolution. It is, therefore, reliant upon the adjudicator first identifying an issue that only the declaration of unconstitutionality could meaningfully redress.

And such an issue naturally stems from an aggrieved party or parties and not from the sole desire of the adjudicator, as was the case here. The Court, in this case has, by its inappropriate initiation of the referral procedure, clearly violated Article 9/2 of the federal constitution.

Similarly, it boggles the mind as to why the CCI decided to totally disregard Article 84/1 of the federal constitution, which states – “The CCI shall have powers to investigate constitutional disputes”. Again, the key word here is ‘dispute’.

Accordingly, the first task of the CCI should be to read the referred file and see whether it is indeed a legitimate referral. A cursory investigation could have shown that there was no aggrieved party requesting relief; that there was no case or controversy; that there was nothing more to the referral and, therefore, should be sent back to where it originated from for want of constitutional dispute.

On the contrary, the CCI, for reasons known only to the institutions, investigated a non-existing dispute; made a dispute out of a non-dispute and furnished a remedy to a dispute it did not bother to identify. In fewer words, the CCI presented a constitutional recommendation that did not emanate from an investigation founded on any constitutional basis.

The CCI did what it did simply because it chose to do so. The CCI, like the court, grossly disregarded its duty to observe and obey the constitution as furnished under Article 9/2.

The CCI also erred in letting this momentous opportunity slip by without making the best use of it, in terms of offering the kind of analyses that could have played a considerable role in the development of the constitutional jurisprudence of the country. As the case itself was a bolt from the blue, so too was the constitutional analysis. The CCI struggled to write a recommendation that claimed a space of three pages in its attempt to resolve the first constitutional issue of this kind.

The CCI could have embarked upon novel constitutional analyses, which could have left a wealth of scholarship and wisdom to posterity.

To begin with, the CCI could have set out with the discussion of constitutionalism, which could have involved the consideration of the constitutional principles relevant to this case. The effort would have included the discussion of popular sovereignty, hierarchy of laws and supremacy clause, human rights, accountability and enumerated powers. an  undertaking would also have prevented the CCI from engaging in a perfunctory discussion of the equality clause only to fail to point out that under both constitutional theories, in general, and under the Ethiopian constitution, in particular, equality is not entirely equal.

The CCI could then have considered the constitutional institutions relevant to this case, their powers and functions and limitations. Such a discussion would have placed the unconstitutionality issue in the proper context. And this, in turn, would have ultimately augmented the effort of building institutions and institutional memory.

It would also have enhanced the endeavour to build a reliable legal system by making the work accessible to law students, law professors, lawyers, judges, researchers and scholars. This did not happen because the CCI did not play the institutional role the constitution had envisaged it to.

The House too did not fare much differently from its sister institutions when it essentially decided to rubberstamp the recommendation. The job of the House is to interpret the constitution when doing so is necessary to resolve a dispute, as clearly articulated under articles 62 and 84. The House should have checked whether there was a properly identified dispute on the basis of which the unconstitutionality issue was framed; whether the CCI received proper referral and whether the CCI did its job as required by the law of the land.

The House should have asked and obtained an adequate explanation as to why and how the unconstitutionality issue was before it.

The House also erred in failing to realise that its job ends at the declaration of the unconstitutionality of the two articles. Once the House declared a law, in part or wholly, unconstitutional, its job was done and done fully and completely. The clean-up of the mess that such a declaration may leave behind, no matter how harmless, is not included in the constitutional job description of the House, as the expressly enumerated powers of the House stand to evidence.

Following its declaration of unconstitutionality, the House should have let other mechanisms including the operation of the law; or other institutions – the judiciary or the legislature – to take care of Melaku’s case. This constitutional institution too has visibly neglected observing its obligations under Article 9/2 of the Constitution.

The Court erred in making an unauthorised referral. The CCI, instead of detecting and rectifying the error, it chose to build on it only to transfer the same to the next level. The House, with the final word in this important constitutional process, was also unable to exercise the kind of due diligence necessary to stop the problem that came all the way from the Court.

All three institutions failed, and to the extent those institutions failed, the system failed.

Still, considering the inexperience and unpreparedness of those institutions, the errors and failures discussed here are not entirely unforgivable, if those institutions are as ready to take responsibility as they were to wield unconstitutional powers.

 


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