Constitutional Lacunae Demand Urgent Attention




Though constitutions usually provide a holistic guideline for any given country’s supreme law, the Ethiopian Constitution, particularly in light of recent identity-centred questions raised by a group of people in Wolqait, Tigray State, have exposed major gaps. This pertains to a glaring lack of substantive and procedural principles to address such questions.
The demand made by some residents of Wolqait is not for a brand new independent state, but rather to be placed under a different type of administrative unit. They are demanding to be put under the auspices of the Amhara State, rather than the Tigray State. This is because the proponents claim that they identify themselves more with the Amhara in linguistic and cultural terms. The Constitution has no clearly stated procedural or substantive provision to entertain such demands by any nation, nationality or peoples.
The government claims that Wolqait was delimited based on the predominant language spoken by its residents, as was the case in delimiting states across the country. This, however, does not mean that other nations, nationalities and peoples speaking different languages are not present in the area.
The Constitution is the bedrock upon which the current state and government structures are built. With identity and self-administration on the basis of ethnic identity given a pronounced role as the fundamental essence of the federal state arrangement, the Constitution provides a road map by which the nations, nationalities and peoples of the country, whom it considers as the bearers of sovereign power, can fully exercise their various rights. This includes the establishment of government institutions in the territory they inhabit.
Owing to its state structure as a federal construct, various states are established as members of the federation. The Constitution stipulates the process through which the states are delimited, which includes language, identity, settlement patterns and the consent of the people in question. In bringing this principle to the ground, however, there are numerous instances that have resulted in the establishment of special weredas as ethnic or linguistic minority enclaves among a larger ethnic group.
The group of people that identify themselves as the Wolqait Committee, who are making this demand, claim to have gathered signatures in a petition they organised in support of their cause. They maintain that they submitted their claim to the regional council of Tigray State. However, with their call receiving no agreeable response from the state council, a precondition and the only channel through which such an issue will be tabled to the House of Federation, the group claims it brought the case directly to the House without the endorsement of the regional state. The House of Federation, the entity with the mandate of giving ultimate interpretation on constitutional issues, rejected the case as it didn’t come through the correct procedural channel. There was no other way for the House to look into issues; unless a two-thirds majority to entertain such requests by the state council activates its mandated responsibility.
Coming into effect almost 21 years ago this month, the Constitution proclaimed to establish a federal democratic system whereby the nations, nationalities and peoples came together willingly to exercise their “right to self-determination, to build a political community founded on the rule of law and capable of ensuring a lasting peace, guaranteeing a democratic order, and advancing their economic and social development”. However, the procedure that demands a two-thirds majority endorsement by the council of the state as a requirement to entertain identity claims seems to take away the ultimate power from the people and appears to go against the very fibre of its core principle. If any procedural arrangement, or the lack of it, ultimately blocks the exercise of this right, revisiting the principles of the Constitution is critical. Not doing so poses a danger of being untrue to its principles and ideals.
The Constitution also outlines that the House of Federation has the sole power to interpret the Constitution and to bring a peaceful resolution in cases where there are border disputes between neighbouring regional states. Such powers of the House of Federation were put to use in settling the fate of four weredas bordering the Oromia and Somali states about a decade ago. As the weredas in question are inhabited by both ethnic groups, each state claimed its jurisdiction over the territories. The dispute was resolved after the House of Federation intervened and conducted a referendum where the population in the areas voted as to which regional state they would prefer to be part of.
What was so vivid was that the decision brought about a peaceful conclusion to the issue; the process did not, however, provide a clear understanding of how to address demands made by nations, nationalities and peoples in choosing which state they would like to be part of. In this case, the House of Federation appears to have dealt with the situation as an ordinary case of conflict between two regional states.
Since there is no claim between the Tigray and Amhara States over the fate of Wolqait, there is no procedural or substantive principle stipulated in the Constitution that can warrant an intervention from the House of Federation. Though the nations, nationalities and peoples of Ethiopia hold the ultimate power in deciding their social, economic and political fate, procedural and substantive blind spots in the highest law of the land are preventing some, as in the case of Wolqait, from gaining Constitution-induced settlements.
Moreover, despite serving as the integral legal, moral, philosophical and political compass of the country for the past two decades, the Constitution has remained largely bundled up, with virtually no commentaries or opinions by MPs, the executive or scholars on its procedural and substantive lacunae. The failure of the body politic to enrich the Constitution with detailed accounts of major constitutional judgments passed by the House of Federation is a major shortfall, which could have shone light on the various procedural and substantive blind spots.
Though the House of Federation has in instance utilised the Constitution to settle self-determination issues, such as the case of the Silti people, quite often its decision in settling cases is simply based on political judgment. This trend – that decisions are passed based on a political stand as judgment – needs to stop. It should not be about a political stand, but rather legalistic interpretation based on the spirit of the Constitution.
No nation, nationality or people, under the current federal system, can put forward any claim pertaining to identity or where it finds itself in terms of an administrative unit through non-constitutional means. Any show of force or disobedience that undermines the rule of law by any group should be rejected unequivocally. Any attempt to hijack and politicise any questions raised by any one of the nations, nationalities and peoples, such as in Wolqait, will most likely result in damaging the cause. Had the Constitution been without any procedural and substantive loopholes, or had there been commentaries actively incorporated to make up for those loopholes, it would most likely have avoided the protests the country faces today.



Published on Aug 09,2016 [ Vol 17 ,No 849]


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