It`s About Time to Start Debate on Constitutional Amendments

Jan 12 , 2019.

An expected consequence of the growing rift between the constituent parties of the ruling coalition, EPRDF, is the lack of diversity of ideas and agendas in the legislative house. With MPs getting more responsive to their constituents than their party, parliamentary bills are less likely to pass without being challenged.

Take the case of the bill submitted to Parliament by the Prime Minister’s Office to establish a federal commission to study regional states’ administrative demarcations and ‘ethnic identity issues. It is an advisory body the will report directly to the Prime Minister and his cabinet. Animated debates in and outside of Parliament characterised the public perception of its raisond`etre.

Parliamentarians who voted against it argued that it is unconstitutional because the commission potentially can usurp the power of the House of Federation, the legislative body that has the mandate over disputes between regional states, including over administrative demarcations.

It was a stark reminder of the legal and political battles characteristic of a more pluralistic government. As the laws, institutions and structures of the country are being challenged, replaced or tweaked with more frequency than in the past, the battle over ideas and interests will more likely involve issues of the constitution, its interpretations and the spirit of its provisions.

The House Federation has the power to decide on matters of constitutional disputes and to ultimately nullify legislation that it believes is incompatible with the supreme law of the land. It is a departure, by design, from most liberal constitutions but not uncommon.

The French are notorious for maintaining that unelected judges should not have the power to quash acts of legislation. The British have the view that it is their parliament which has sovereignty over the other bodies of their government. The verdict is that a democratically elected legislature’s decision is supreme, and learned members of the judiciary should have no cause to invalidate it.

Ethiopia has followed a similar route.

The House of Federation is a political body, whose members are appointed by regional state councils or directly elected through elections the states hold. Given the federal structure of the country is established along lingo-cultural lines, each “nation, nationality and people” is represented by a member, with an additional representative sitting for each million of a group’s population, thus sticking to the practice of majoritarianism.

There is indeed an 11-member Council of Constitutional Inquiry, where the President and Vice President of the Federal Supreme Court sit. The Council investigates appeals of constitutional matters brought by citizens to the Supreme Court, but its duty is limited to an advisory role and issuing recommendations to the House of Federation.

Granting this legislative body  the power to interpret and most importantly review the constitution is thus a fulfilment of an argument for parliamentary sovereignty. If representatives of the people enact a law that may contradict the writ of the constitution, then another agent, sitting for the people, can remedy it, at least that is how the argument goes. Theoretically, it is an argument with merits.

But this conceptualisation by the authors of the constitution assumes that the legislative bodies would have members composed of diverse desires, aspirations and interests in the country.  Regrettably, the hegemonic drive of the EPRDFites in both legislative houses rendered the process a mere lip service. As the party, whose operating principle is democratic centralism, grew indistinguishable from the state, the case for empowering one of the legislative bodies with constitutional review and interpretations became less persuasive.

This problem can only be consequential now that major political reforms are being taken at breakneck speed and the nation’s stability is at a delicate point. Such transitions require careful, long-sighted and neutral deliberation when it comes to disagreements over the constitutionality of laws and in how the supreme law of the land should be interpreted.

Such power should be diverted from being imposed by the sheer wills of the majority. Given the kind of mandate this entails, the authority to interpret and review the constitution should be granted not to the House of Federation but to a constitutional court. Those serving on this court should be appointed for life, and the political will of voters expressed through their elected representatives confined to the confirmation process of individuals nominated to serve as justices of a constitutional court.

Ironically, this will entail having to go through the arduous task of a constitutional amendment, something that has not been tried since the existing constitution was adopted 23 years ago. Contrast this to the constitution of the United States, which has seen 27 amendments. The first 10, known as the bill of rights, were ratified only two years after the constitution entered into force in 1789.

What might have kept Ethiopia from seeing any form of amendments for over two decades could not only be lack of political will on the part of the revolutionary democrats who had completely gripped the political life in the country. The road to constitutional amendment is an arduous task, requiring clear consensus by all federated states.

A proposal for an amendment to set up a constitutional court will require a two-thirds majority by the joint session of the two legislative Houses and a majority vote by two-thirds of the regional councils.

Transferring mandates to a constitutional court will be taking a path different from the intent to grant the House of Federation such powers in the first place. It will allow an institution of the judiciary the power to invalidate an act of legislation deemed unconstitutional. Thus, a careful and deliberative nomination and approval of the individuals and the strict code of conduct have to be applied.

The nation is bound to fall into political battles as reforms see the light of day. An independent body not accountable to the incumbent in Addis Abeba, and able to decide unencumbered by loyalty to any particular constituency would go a long way in making current political reforms meaningful.

It is hard to imagine what the authors of the constitution had in mind, or their intents on revisions and amendments. It is the task of this generation of politicians to make the social contract valid to contemporary Ethiopia by taking advantage of these very provisions. It is a long overdue task.

PUBLISHED ON Jan 12,2019 [ VOL 19 , NO 976]

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