Constitutionalism Flourishes When All Ideas Contend

There is a growing tendency within the rank and file of the ruling party to consider the Constitution as a sacred document not to be debated, argued against and maintain reservation about. Opining against the provisions and premises of constitutional provisions is widely considered a crime. This is so even if the Constitution rightly depicts the right of individuals to “hold opinions without interference” and even “impart information and ideas of all kinds…through any medium of choice.”

There can be no better evidence of this growing trend than a recent decision of the Federal Parliament to purge a federal judge from his position questioning his “loyalty to the constitution.” It is confusing how “loyalty” is interpreted in the decision, technically underpinned by a decision note from the Federal Judicial Administration Council, as the evidence presented for the dismissal relates to the opinion expressed by the judge outside of the courtroom. Worse, the decision note of the seven-member Council mentions that “a judge could not have any difference with the Constitution, at any platform, and has to have unquestioned loyalty to it.”

At face value, the decision may seem unique. But it is not. It is a part of a bigger picture relating to how the ruling EPRDFites would like to rule. It is also representative of the ever narrowing political space of the nation that witnesses a ruling party monopolising each and every aspect.

True, the Constitution is the supreme law of the land. There is no alternative to observing and obeying it. Every citizen of the nation, regardless of colour and creed, has the responsibility to respect the provisions of the document.

Thanks largely to its writers, the document sets a higher standard with regard to the rights of citizens. Not only does it accept the Universal Declaration of Human Rights, International Covenant on Human Rights and other international instruments adopted by Ethiopia as its integral parts, but it also pushes the threshold of rights well beyond the popularly perceived level. Some even argue that the document is too liberal to be pushed forward by a ruling elite created out of the ashes of the Cold War.

With its 106 articles and multiple sub-articles, the document addresses issues ranging from territorial jurisdiction to legal authority. And ever since it came into force on August 21, 1995, the document has continued to serve as a pillar of the social construct in a nation of multiple linguistic-cultural identities. This, however, does not mean that the journey has been all smooth.

Starting from the very days of public discussion before its adoption, the Constitution has faced divergent views. While some came from political forces, such as opposition political parties, others came from experts and researchers. Whereas some focused on the premises behind the provisions, others argued against specific provisions.

No article seem to be as debatable as Article 39. The article that provides “every nation, nationality and people in Ethiopia” the right “to self-administration, including the right to secession,” has remained the hotbed of political debates in every election cycle of the last 25 years. Other articles, such as those relating to the right to development, right to property, and the right of persons accused, have also had much deliberation relating largely to their implementation.

The genius of the Constitution, however, lies in its provisions for amendment. Far from the latest popular perception within the rank and file of the ruling EPRDF, the very document adopted by the will of the nations, nationalities and peoples of the country clearly indicates the ways to amend it. Implicitly, then, the Constitution itself admits that it is not a scared document and that it can be amended through a constitutional process.

The source of the latest trend of the ruling elites is therefore puzzling. It has no constitutional backing at all.

It would be naïve to assume that a constitution that sets the standards for amending itself would deny deliberations on its principles, premises and articles. It so happens that the supreme law gives every citizen the right to express her opinion, on every platform and in every possible way. There is no limitation imposed on the expression, be it spatial or temporal. And no professional background bars anyone from exercising this right to the fullest.

This is largely why the latest decision by Parliament goes against the Constitution. As the decision comes from the highest authority, it takes no genius to see the domino effect it would have on the legislative and political spheres. No doubt that this could set precedence for the wider decision making practice in the country.

If one is to be honest about the state of affairs in Ethiopia under the ruling EPRDF, it would be obvious that constitutionalism is increasingly being limited to rhetoric. Critics even argue that the very ruling elite that advocated the adoption of the Constitution tramples its ideals, principles and provisions. They argue that the document has become a political instrument, quoted only when the ruling elite wants to discredit, imprison and accuse opponents.

Indeed, the journey seems to be one from adoption of a rather liberal constitution to interpretation of the supreme law in a way that pleases the political elite. The latest decision of translating “loyalty to the constitution” to mean “not questioning its philosophical basis and provisions” is a showcase to the precipitating trend.

It is one thing to respect the Constitution. But it is completely different thing to opine on its various elements.

In an island of two individuals with similar backgrounds, it is unrealistic to expect complete agreement on all things, let alone in a country of 90 million people, with multiple differences. That is exactly why the writers of the Constitution, not to mention the public representatives who voted for it at the time, rightly included articles guaranteeing the right to freedom of expression. It is this right, exercised to the fullest, that could ensure the observance of the law.

Denying this right to freedom of expression, through legal, political or administrative means, is certainly unconstitutional. It not only denies an inalienable human right, but it also risks the stability of the very system the Constitution envisions to establish.

After all, there cannot be democracy without freedom of expression. And this freedom has to be enjoyed by all, without distinction or differentiation. And when constitutional interpretation is needed, it has to be done in a way that captures the intents of the writers.

Equally important is the fact that politics has to be limited to its sphere. It should not played at the expense of the legal sphere. So should it not be played at the expense of constitutionalism.

In light of the latest trend, therefore, the ruling elite ought to stand clear. On the one hand, they have to made it clear to their peers, constituents, administrators and everyone, that the Constitution is a document that has clear provisions for amendment and hence is not sacrosanct. Expressing views opposing the ideals, principles and provisions of the Constitution is not, in and of itself, a crime. Doing so becomes a crime only when it follows an unconstitutional path.

On the other hand, they have to get away from their long overdue rhetoric of constitutionalism and begin, instead, to live up to the spirit of the Constitution. Categorizing every opponent as “anti-constitution” helps no one. Such an act deprives the people of choice and hinders the progression of democracy in the nation. There is nothing to be gained from, other than chaos and instability.

For an infant democracy such as Ethiopia’s, much of the job of setting standards lies on the shoulders of the ruling elite. Much as their rightful acts will have a positive impact on many aspects of life, their wrongs will have huge negative externalities. The case is even more important when it is about the Constitution.

Ending the unhelpful rhetorical path is vital to ensuring observance of the supreme law of the land by all citizens and political players.

And the example must be set by the ruling elite itself.

Published on Feb 14,2016 [ Vol 16 ,No 824]



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