Commentaries | Feb 23,2019
Hardly anyone matches the intellectual repository and experience of constitution making in Ethiopia as Fasil Nahum (PhD). He was involved in the drafting of three constitutions since the Imperial days but under radically different regimes. Never entangling himself in party membership, he always cherished his distance from power politics and remained determined to contribute professionally.
“I purposely decided not to belong to any party,” he told our OP-ED Editor, Tibebu Bekele. “It`s not a party line that I talk about. I thought that I could be useful as a professional if I thought independently.”
The 77-year-old lawyer and scholar is in great physical shape and has a sharp memory. He has a calm manner as he sat down to reflect in his serene home, perhaps in nostalgia, on the historical context, the political process and - yes - some of the regrets he may have in hindsight of the making of Ethiopia’s current Constitution, which is now a source of passion and fury.
Fortune: It is over two decades since the ratification of the Ethiopian Constitution. You were one of the few experts involved in the crafting process and authored a book on the subject, "Constitution for a Nation of Nations: The Ethiopian Perspective". Is it not fitting to say that you can put the historical records in context?
You take me back nostalgically. Ethiopia then was a post-conflict, traumatised society. For several years, there was a war taking place. When the EPRDF finally controlled Addis Abeba, we had something like 17 armed groups roaming around the country, fighting one another and the government. Ethiopia was a war arena, free for all types of war.
There were two major pieces of homework. One was to pacify the country and normalise life immediately. I am sure you remember the plastic shelters that were all over Addis Abeba and other towns; for the previous two years or so a lot of people had been coming to Addis Abeba from the countryside. In about six months, the population of Addis would have increased by at least one million people.
It was an unsettled time and a wholly traumatised society. People did not know what tomorrow would bring. It was complete confusion.
The economy was in shambles. Not only that. The central government did not have foreign currency, and business was not running. A whole set of things conspired against regular life. The country was coming out of many years of war and decades of massive human rights violations.
The second homework was the long-term aspect. How is this society going to be governed? Then you need a constitution, but that gives you some time. If you cannot solve the immediate solution that people have enough food to eat, that we have proper shelter, that they can see that tomorrow is going to be better than today, and they are going to work, it is a big problem.
Remember, this was a society awash with weapons.
Q: What was the Constitution drafting process like?
The EPRDF called for a conference at the Economic Commission for Africa (ECA) in the first week of July. The leading players were the liberation movements. It was their representatives that were sitting there, and there were others as well. One of them was the Eritrean People's Liberation Front (EPLF). They said they were not part of Ethiopia but came as observers.
The main discussion was the need to have the charter to run Ethiopia. A transitional charter was finally prepared and the transitional government established. This interim government was supposed to be for two and a half years. The charter was a kind of constitution for the transitional government, and once it was established, then it was up to it to prepare a constitution.
Q: At this summit in Addis Abeba, elite-led political groups and entities that came out of the student movement and were influential in the political scene were excluded. Don't you think that exclusion later became a wedge in the broader acceptance of the Constitution? Don’t you think it stopped it short of becoming a negotiated settlement?
The ruling party officially excluded the Workers Party of Ethiopia (WPE). Nobody else was officially excluded except for the WPE. And the reason for that we may go into, but basically, this was the former ruling party.
Q: But groups like the EPRP and AESM as well as a coalition led by Goshu Woldie (Col.) were excluded, weren't they?
Many of the EPRP leadership were part of the EPRDF in their various sub-groups. They were also inside many other organisations, and many of them joined EPRDF later on. There was no official exclusion of anybody, except for the WPE. There were also people from the university sitting in the summit. All issues were openly discussed, and the transitional charter established the interim parliament, which appointed a committee to draft a constitution.
Fasil Nahum (PhD)
The committee took some time, a long time actually. It was supposed to be for two and a half years, but it took four years. It started by inviting various people from within the country and from outside to consult on what the constitution should look like.
A whole set of constitutional issues that came up were discussed widely. In some cases, people had open public lectures on what they thought the Ethiopian constitution should look like. One issue, for instance, was the land regime. Should it be public or privately owned? Questions such as what to do with the military and how it was going to be a part of the system were important, because the army was the government early on.
Finally, we came up with a document.
Ethiopia was divided into 547 electoral units, and a candidate was elected from each electoral unit. The document was presented to them, and they went through it article by article and made changes. Finally, there was a document that was presented to the transitional parliament, which did not add or subtract anything. They just accepted it by acclamation, and it was promulgated into law.
Q: The dominating presence and intimate involvement of the victorious political force in the consultation process, the EPRDF, has left a strong footprint of its worldview on the final document. Its leaders left no room for a negotiated settlement. Didn't this facet of the process impact the way people perceive the constitution-making process in the decades following, hence a popular sense of exclusion?
You are completely correct. But this is always the case for any constitution. When the Communist Party takes over in countries like Russia, East Germany, Romania, Vietnam, and Cuba, it is their worldview in their respective constitutions. When Social Democrats in Europe took over, it was their worldview that was in their constitutions. It is the same in Norway and Sweden.
Liberals dominated in the making of the constitution in the United States. But slavery was part of their worldview, and they had it intact, because it was slave owners writing the constitution. And for 100 years, the constitutional system accepted slavery and enforced it in the United States until Abraham Lincoln’s time.
Yes, any ruling system would want to have its worldview included, because it thinks that it is the correct one.
Q: Does this justify the EPRDF's choice, which was not willing to compromise with the demands of others?
It is not surprising that we have a worldview of that sort. One of the issues that people speak about is that it is heavily based on the concept of nationality. It is interesting, because this was an issue that was taken up by university students again and again. When I was a student in the United States, for instance, in the North American charter of the Ethiopian students' union, one of the main issues was that the question of nationality should be dealt with in Ethiopia. It is not something that the EPRDF created. It comes as a worldview, later on, that nationality should be taken into account. We are a multinational state.
Q: For instance, the inclusion of land ownership in the Constitution has handicapped the government by depriving it of policy options to respond to current realities of economic development. Was it wise to enshrine a policy option of one party in the Constitution?
Twenty-five years ago, the argument about whether land should be publicly owned or private property was hotly debated. I saw the problems, and I was swayed over to making it public property. We were dealing with a traumatised post-conflict society, and the population was 85pc agrarian. If we were to privatise land, what it would mean was that the farmers would sell their farms for cheap and flock to towns.
With no skills, in any case, and very few jobs in towns, we would have been left with a lot of people that Karl Marx would call lumpenproletariat. This could have been a major problem both for the farmers, and it would turn into not only an economic issue for the country, but it would turn into a political crisis as well. The alternative was to keep farmers where they were. In spite of them being in subsistence farming, it was still better than uprooting them. Public ownership of rural land was the preferred solution at the time.
When it comes to towns, it was another thing. Perhaps, one could have thought it was easier to think of private ownership of town land.
Q: The argument on land was based on economic rights to own private property, if not questioning the political intentions of the dominant political force at the time. Is this a fair depiction of the other side?
The other side of the argument, in many ways, was internationalised. I am not sure that it helped us much. We were emerging out of the communism of the Dergue. We were expected to look westward; and therefore, since they have a private property model, we should also look like them and make land private property.
But in Africa, you do not own the land as an individual. It belongs to your parents, as it will belong to your children. You are just holding it, passing it on in the process. You do not sell it, for it was your parent's land. Although now it is yours, it is going to be your children’s.
Fasil Nahum (PhD)
The West, basically after the French Revolution, had moved to private ownership, although in the Middle Ages it had the same kind of concept. But the way the West developed was in making land and immovable property as a whole, including whatever structures you build on it, private.
But you are dealing with constitution making, and you always have to try to solve the problems of society. You do not draft a constitution in a vacuum. Drafting a constitution is like a tailor’s work. The tailor has to have measurements. You have to tell him what kind of dress you would want to have. In the same way, in constitution drafting, you have to see what society looks like, what its problems are, and its history. You have to understand society's vision, in what direction it wants to go and what resources it is endowed with.
To simply borrow from international issues would not have been helpful.
Q: Do you think it is time to change the land regime and amend the constitution?
I would think that when it comes to urban land. It can be considered now.
But with rural land we still have problems, for we have in our federal system nine states. But in many areas, they have not been fully demarcated yet. To take one example, where is the boundary between the Oromia Regional State and Addis Abeba?
We do not have the certification system yet. We have the cadastral system, but it should include the concept of ownership. In some states, they have started with certification for possession and not of ownership. We should also look into the issue of inheritance. It is only the ones that till the land that have the right to inheritance. Unfortunately, there are many cases where brothers and sisters are in court, because we do not have a system of quickly solving problems. It is not an easy issue.
Q: With a strong bill of rights and protection of individual rights, the Ethiopian Constitution, for the most part, is a liberal document. Nonetheless, the mechanism set for constitutional amendments is very stringent. Wouldn’t a more flexible constitution serve an evolving democracy better?
One can think like that. But on the other hand, a liberal constitution and a complicated amendment process go hand in hand.
If you have managed to include all the human rights provisions and drafted a constitution on the basis of that, you do not want any temporary parliamentary unit to change it, as it will dilute it. You want it kept as it is. Ethiopia's Constitution has placed a high standard on human rights, no question about it. We have a liberal document, thus do not change it as far as human rights issues are concerned. Of course, it can be amended, but the process is made difficult. It has two levels of amendments. In one level it says, "don’t touch the human rights aspect, continue developing."
Q: The relationship between the regions and the Federal Government is one of the hot topics right now. The Prime Minister has talked about the constitution as being "a holding together" type rather than a "coming together" type and that regional boundaries are there only for administrative purposes. He has faced sharp criticism from those who believe it is eroding federalism. Are the regions sovereign states that only have given delegated power to the federal government?
Definitely, it is a "holding together" and not a "coming together" in the sense that there has been an Ethiopia [state] before the federal system was superimposed.
It was not like Somalia, where soon after it became independent, they put Italian Somaliland and British Somaliland together. That is coming together, bringing together. Take Cameroon, the big part of it was run by the French, and the smaller part was run by the British. After independence, they came together in "a coming together" fashion, because they were not states before that. There was not a Cameroon state before that. They were part of larger empires.
In our case, what we did was, we changed our system. We said, "let’s administer ourselves federally rather than in a unitary system." It is a federal system that the constitution has come up with. Therefore, it is not an administrative boundary within a unitary system. It is a federal system of administration.
Q: In light of current developments, for example, the Sidama Zone question, and the controversy regarding the interpretation of Article 47, in hindsight, don’t you wish there was a constitutional court?
There are three systems in the world, and we looked at them. One is a constitutional court introduced to the world by the Americans. It is an interesting idea - the American Federal Supreme Court took it upon itself to interpret the constitution. But it is not written in their constitution that the Federal Supreme Court has the right to interpret the constitution. They are happy with it.
The other is the European approach, which has been that you create a different court that interprets their constitution. The reason you do that is because they are not legal issues but constitutional matters.
Then others say rather than create a special court, let's create some other institution. We have created another institution, the House of Federation, which interprets the Constitution, advised by a group of lawyers who would come up with recommendations. If we were to change, I would prefer that we go to a special constitutional court.
Q: And while we are talking about systems, the parliamentary system was chosen, which is a more sophisticated system. The Prime Minister could be elected from a single constituency, and he only needs to win the votes of his party members to become the leader of the country. Whereas, in a presidential system, the chief executive would have to campaign and win majority votes from all over the country. That would make him a more unifying figure. In an evolving democracy like Ethiopia, would a presidential system be a better form of government?
We have always had a presidential system, so to say - the kings, with absolute power; and then the Dergue, one person with absolute power.
I think people thought that power should belong to the people. In a parliamentarian system, in principle, it is the 547 members that make the decision. The Prime Minister is only one member. They can elect him, or they can throw him out. The idea was legislators elected from all over the country better reflect the make-up of the country than one person. The Prime Minister has a lot of power, but parliamentarians are supposed to hold him in check.
But the reality does not reflect that situation. It is a difficult question. It is an unsolvable question, because all systems have their problems. But still, I would prefer a parliamentary system.
Q: The current term of this parliament will expire next year. The Constitution mandates there has to be an election a month before the end of the term. Given current realities, some feel the country is in no position to hold elections, and it should be postponed. Can the current parliament pass a resolution to extend its term? Will that be constitutional?
There is only one way of doing it: by amending the Constitution. Otherwise, parliament does not have the power to extend its life. It does not have that right. The Constitution is very strict and very clear. Every five years, there should be national elections. I will expect national elections to take place unless in the case that the Constitution is amended. It is possible to amend the Constitution. This is less strict in a way than the human rights aspect.
Q: When you were studying constitutional law, you probably did not imagine that you would be involved in the crafting of three constitutions.
Not really. But it was very clear even then - when I wrote my thesis on Ethiopia needing to move from the kind of monarchy we had to a constitutional monarchy - I wanted to serve in the transition to a constitutional democracy. How to introduce democracy has always been the main issue.
Since the time of Emperor Tewodros, it has been a question of modernisation, particularly of the army. Emperor Yohannes too was in that league. Emperor Menelik was also fighting others when he chose Addis Abeba as his capital. But he had a broader idea of modernisation like the railroad and the idea of piped water. Emperor Haileselassie’s was a fast modernisation if you look at the founding of companies such as Ethiopian Airlines and higher education [institutions].
But democratisation, which is the modernisation of politics, has not taken place even today. The modernisation of politics, and in that sense, it is the constitutionalisation of politics rather than the politicisation of the Constitution that is the challenge. That is where we are continually struggling. The constitutionalising of politics is the crucial thing to create in Ethiopia. We are not there yet.
Q: One last thing, any regrets?
What they say about politics being the art of the possible, constitutionalism is the same thing. It is the art of the possible. You do not necessarily take the best idea, but something that most people would be happy to live with.
One thing that I regret, that I do bring up now and then, is not creating a constitutional commission to constantly ensure that ideas about the Constitution are brought into the society at different levels. I was told we had too many commissions, and it would be redundant.
It is not too late. I think we should still deal with establishing a constitutional commission. We did not sufficiently use the Constitution.
PUBLISHED ON Aug 10,2019 [ VOL 20 , NO 1006]
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