In-Depth Analysis: Waiting for Godot: Pandemic and Elections in Ethiopia

In-depth analysis posted in Addis Standard: https://addisstandard.com/in-depth-analysis-waiting-for-godot-pandemic-and-elections-in-ethiopia/

Addis Abeba, May 07/2020 – The Prime Minister of Ethiopia has just announced that the ruling party will stay in power until the next election.  Both the end of the Covid-19 and the polls are like waiting for Godot, and no one knows the arrival.

In the absence of a constitutive dialogue with the people and given the futility of using brute force, the weapons of coercion for political authorities boil down to deception, manufactured legalistic confusion, and corrupt practices. In Gramsci’s words, this is a position ‘characteristic of situations when it is hard to exercise the hegemonic function and the use of force is too risky’.

The Hippocratic ‘do no harm’ oath

Citing the Covid-19 pandemic as the reason for the move, on March 31 2020 the National Electoral Board of Ethiopia (NEBE) postponed indefinitely the scheduled August 29 2020 legislative elections. According to the NEB, Covid-19 renders elections before the end of the government’s current term of office impossible without doing ‘harm’ to those involved. This seems a bizarre justification, not least because NEBE chairperson Birtukan Mideksa cited the Hippocratic ‘do no harm’ principle in making the call. Supporters of the decision, mostly from the incumbent government, have expressed agreement with the NEBE on the need to protect the lives of those Ethiopians managing or otherwise participating in the elections. Other voices, however, have condemned the decision as a corona-clouded power grab.

The postponement of the elections came as no surprise.  After a long whispering campaign to that effect; the August date – three months later than the usual election month of May – was finally determined following months of uncertainty. Even then, the schedule did not fully take into account Ethiopia’s rainy season which begins in June and that could complicate electoral activities, Ethiopia being an agrarian country with limited infrastructure for transportation in bad weather. It should also be borne in mind that there was a precedent for deferment of elections: those in the two chartered cities of Addis Abeba and Dire Dawa were postponed on April 12 2018, allegedly for security reasons.

The Constitutional gridlock

The electoral process is a multi-faceted one.  Elections are critical not only in determining who should hold power and why, but also how it is to be exercised equitably. They are also a mechanism for exercising fundamental rights, most importantly the right to take part in the governance of public affairs through the vote, and for determining who can and should run for public office. Elections are also intrinsically related to a myriad other fundamental human right, including self-determination, self-rule and (in federal systems) shared rule. Despite this, Ethiopians in general – and regional states in particular – have been unable to express their preferences for far too long and on far too many critical issues particularly in transitional time that seems to change many pre-existing policies covering the national interest, public policy and human security.

In law, the elections to the federal parliament and regional councils need to be conducted before their respective five-year terms of office end; the federal constitution does not stipulate any extension of tenure for those elected bodies. Thus, by early October 2020 when the newly elected federal and state legislatures  ought to assume office, neither will be in place unless some constitutional measure is carried through. The federal government believes that there are four possible constitutional avenues through which to resolve the impasse: first, by dissolving parliament and forming a caretaker government; secondly by extending the term of office through declaring a state of emergency; thirdly, by amending the Constitution; or fourthly through constitutional interpretation. Though presented as four options, substantively they represent on two strands of opinion.

The reactions to these opinions however can be divided into three blocs of thought. The first of these supports the extension of the term of office through any means – amending the Constitution, seeking a constitutional interpretation or if necessary, through a declaration under a state of emergency. This bloc is mainly composed of lawyers serving the current government in one form or another who are privy to backdoor discussions on the matter. Aware that the government holds an overwhelming majority in both lower and upper houses of the Federal Parliament, their preference is for an amendment and/or interpretation of the Constitution. They aim at emplacing the government by extending its term of office through thinly veiled legalistic and quasi-epidemiological arguments. This group forms what might be called ‘the emplacement’ bloc.

The second group maintains that elections should be held before the end of the current terms of office. Its members reject any amendments to the Constitution so close to the elections and regard any attempt by parliament to extend its own term as a blatant violation of the law. They are emphatic that there is no need for any ‘interpretation’ of a provision of the Constitution that is already crystal-clear and argue that failing the elections, come October 2020, federal and regional level governments alike will be unconstitutional. Some of them believe that the election should go ahead, others that dissolution of parliament is the clear constitutional way out. They are strong supporters of a textual interpretation of the Constitution and are ‘originalist’ in their approach to constitutional interpretation; hence they can be called ‘constitutionalists’.

The third faction seeks a political solution through a constitutive dialogue that can lead to an agreement on the way forward. Most of its members are leaders of political parties, of all colors, with aspirations of dislodging the present government. Some of them propose a total cancellation of the elections and the formation of a transitional government of national unity. They represent the transitional, or perhaps more aptly, the ‘replacement’ bloc.

Together, the latter two groupings oppose the government’s extra-parliamentary position. 

The public health risks and political legitimacy deficit and deadlock is real and there is no easy way out, but there is no constitutional critic. These arises out of a dangerous cocktail of a serious pandemic against a background of divisive politics, and a decision to delay scheduled elections which has plunged Ethiopia into an unprecedented constitutional crisis. 

End of the pandemic: waiting for Godot

The trade-off between public health and fundamental human rights such as voting, freedom of movement, self-determination, self-rule and participation in elections, is a delicate one. It cannot be undertaken lightly in a country such as Ethiopia, which already is embroiled in a controversial process of political transition. It is true that public health considerations may sometimes trump some fundamental rights, but they should be viewed only as short-term measures. In the case of Covid-19, the science indicates that the efficacy of lockdowns and restrictions depends on many different localized factors. Granted, many – if not most – aspects of the pandemic remain uncertain but some basic facts are uncontested. Covid-19 is highly infectious; its spread can be slowed by physical distancing; and restriction of movement could give governments and other stakeholders time to prepare their response. (As it stands, although some stringent measures have been taken, Ethiopia is under a less strict restriction than many other countries.) Of course, if number of infections and deaths associated to Covid-19 drastically surges, the popular and performance legitimacy of the government will be tested. 

But there are also many unknowns about the pandemic that decisions of great consequence, such as leaving unresolved the date for national elections, are not warranted. As an example, it seems that the peak infection time is hard to predict with any certainty even though some models show that Ethiopia will have passed the worst of the pandemic by mid-May 2020. Most researchers agree that a vaccine will not be available for more than a year and that the infection rate varies depending on human interconnectedness and on measures such as physical distancing and wearing masks in public: indeed, many Asian and African countries are among those that have started to ease broader restrictions while enforcing physical distancing and ‘masking up’. Nevertheless, predicting the peak, much less the end of the pandemic is highly speculative. To peg everything, including an election vital for the legitimacy of the government – not to say the very survival of the country –on a notional end to such a serious pandemic is like waiting for Godot. An interminable wait for a speculative end to the pandemic in order to determine the fate of the country’s governance cannot be a sensible plan, and the NEBE’s ‘no harm’ reasoning does not hold if one considers the range of available risk-reduction mechanisms that would permit elections to go ahead. Such mechanisms are being widely used in the economic sphere, in education, in communications and in public health systems to avoid a total disruption of essential supply chains. Life goes on – even under Covid-19.

The powers and functions of the NEBE derive from Article 102 of the Federal Constitution and the NEBE is under a constitutional duty to conduct elections on or before a date 30 days before the last Sunday in September.   It is unclear how the Board reached the conclusion that elections cannot be conducted without putting those involved at risk of infection. Were epidemiologists and health care professionals consulted before arriving at that decision? If so, what models and scenarios were taken into consideration? What time frames did it draw from the models to reach its conclusion? How long are the NEBE and House of Peoples’ Representatives willing to wait for elections?  Is it far-fetched to ask whether elections could be held by using some of the risk-mitigation methods being applied in other sectors of society?  What if the pandemic does not end within months or even years? What is the fall-back plan?  These are questions regarding not constitutional issues but facts and circumstances, and the NEBE should answer them.

Furthermore, greater transparency in handling the pandemic and its consequences has to be the way forward and the opaque manner in which the government has put together groups of lawyers to formulate the NEBE proposal breeds further suspicion. Moreover, the approach it has taken, and the constitutional gridlock itself, expose long-standing weakness in governance institutions. 

Under the Constitution ‘any public official or … elected representative is accountable for any failure in official duties. Article 12 of the Constitution lays out provisions for the conduct and accountability of government and stipulates that the conduct of affairs of government shall be transparent, a requirement that would extend to studies conducted and considerations taken into account by the NEBE when it decided on an indefinite election postponement. The same applies to those entities that presented the four options to the political parties and the House. 

Ethiopia’s Preexisting condition

The cause of the constitutional debate cannot be relegated only to the pandemic. Covid-19 simply exacerbated pretexting conditions of the Ethiopian state and politics. The country is unstable, and its citizens still face the arbitrary killings, detention and massive displacements and economic decay. But the Covid-19 pandemic has upended political agency and relegated them to secondary issues.

This election is unique in many ways. It comes after widespread protests forced the former Prime Minister to resign and a new one was appointed to take over. The ruling party has totally changed both in policy positions and structure. The election would have been conducted amid a half-baked transition period. The legitimacy deficit in tiers of all governance is not an outcome of the pandemic. No institution is spared. The pandemic has further polluted the national politics and dashed yet another hope for a free and fair elections and it dents the credibility of the newly formed NEBE. Without scenarios and alternative mechanisms for voting, the NEBE seems to have resigned and decided to sit and watch the pandemic. It has handed over the fate of the elections to the government and the House of Peoples’ Representatives.

The Corona power grab

In light of these prevarications, the pandemic was considered by some as a welcome pretext for the government to stay in power. The politicization of the corona has taken a new turn hence the emergence of the ‘corona power grab’ in many places. If this was the case it would not be unique to Ethiopia and has been seen in other places.  Many Ethiopians and international actors expected the transition to be smooth as silk and as fast as a downhill move. The current leadership was expected to win overwhelmingly. But with time and fast-waning popular and performance legitimacy, the transition’s uphill battle and the unpredictability of the result of the next elections is now sinking in. Some argue that the pandemic is artfully being employed for a power grab.

Riding roughshod through the Constitution

The constitutional position is clear.  Article 54 (1) and Article 58 of the Constitution determine the term of office of the House of Peoples’ Representatives[1]  and its members.[2] These articles must be read together with Article 8 and Article 9, which relate to the sovereignty of the Nations, Nationalities and Peoples[3] and the Supremacy of the Constitution as the expression of that sovereignty through duly elected bodies. Replacement or emplacement of government outside the constitutional provisions are unconstitutional.[4]  Furthermore, even if the focus of most of the current debate is on Articles 54 and 58, with regard to elections Article 38 on the Right to Vote and to be Elected[5] is also relevant. While substantive fundamental individual and collective rights are encapsulated in Article 38 and Article 39, which confer the unconditional right to self-determination on the part of Nations, Nationalities and Peoples, including the right to secession, the plenary power to call for elections is a vested in the legislative bodies. The enforcement mechanism for the conduct of elections is through NEB channels. Should there be a failure to enforce this authority, under Article 13 the duty to respect the Constitution’s provisions and to ensure respect for them falls on all bodies, including the Federal and Regional States and their institutions and citizens.[6] 

Emplacement through amendment or interpretation

Article 104 and Article 105 of the Constitution respectively deal with the initiation of amendments and the procedure for amending the constitution. Amendments related to rights and freedoms specified in Chapter Three and Article 105 of the Constitution require the support of all State Councils and a two-thirds majority vote of the two houses. In effect, State Councils have veto power over amendments related to fundamental human rights, including Article 39 and the amendment procedure itself.  Constitutional amendments of other provisions including Article 58, on the duration of its term, require only a two-thirds majority vote of the joint session of the Houses and simple majority approval by two-thirds of State Councils. Article 58 and Article 54 (1) on the term of office of the representatives are closely connected to the right to vote and to be elected provided by Article 38. Extending the duration of the term in office of the House through amendment of Article 54 (1) to a large degree would undermine these fundamental rights related to holding periodic elections – the right to elect and be elected. 

Amendment and undue interpretation would further expose the weakness and unpopularity of the constitutional institutions. It may be recalled that India under Prime Minister Indira Gandhi introduced constitutional amendments at a time when the ruling party enjoyed an overwhelming majority, similar to that in today’s Ethiopia. Hugely criticized, her term was widely regarded as dictatorial; it led to electoral defeat and political violence (including that on Mrs Gandhi herself and court cases). Flawed procedural approaches are dangerous to constitutional systems because ultimately, constitutional issues presented as procedural will be marked for violations of constitution’s provisions and substance and although they may centre on procedures they have wider, substantive implications.  A constitutional amendment first needs a constitutive process that forges an appropriate degree of consensus. Inviting interested parties merely to apply the finishing touch to measures designed to extend the government’s term of office would not only be discourteous but also disastrous for the country. Amending the constitution to extend the incumbent’s term of office, as witnessed in so many sub-Saharan African countries, is hardly a remedy for legal or political problems and sets a dangerous precedent.

Calling for an interpretation of the Constitution when no ambiguity exists is equally dangerous and may render a complex political matrix a pure power-driven ‘politics of number’.

Constitutional inquiry is necessary only when lacunas that trigger constitutional disputes emerge. In this particular case, a dispute arises when certain law or decision is challenged by someone as having violated the constitutional principles or provisions. involvement in interpretation of vague constitutional provisions is justified only in the existence of constitutional dispute. Article 83 and Article 84 of the Federal Constitution is clear. The Council is empowered to “decide a constitutional dispute submitted to it by the Council” and “investigate constitutional disputes,” “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.”  One can clearly see from these provisions that the presence of a constitutional dispute is sine-qua-non for triggering the machinery of constitutional inquiry. The same principles are upheld in the proclamations related to the Council.

The presence of alternative views or options about the constitution or its content does not prove the existence of dispute. Let alone options, even in judicial litigation; many cases have been rejected by the Council as there lacked disputes in need of constitutional interpretation.

The power to offer an advisory opinion is granted to these kinds of bodies in other countries in exceptional circumstances. However, no provision in the Federal Constitution confers such advisory powers on the Council.  The House of Federation and the Council never functioned as advisory bodies in the past. In fact, in an earlier family law case, the Council set precedence by ruling that it does not have the mandate to proffer an advisory opinion on possible constitutional disputes. Both organs accordingly rejected a similar request for an advisory opinion submitted to them by the House of People’s Representatives.

If an approach for an advisory was to be endorsed, the House of Federation and the Council would be reduced into to an advisory body. The Council would be inundated by requests for a constitutional interpretation if legislators at the federal or state level are allowed to send what are in essence political debates during parliamentary sessions. 

The House of Peoples’ Representatives has already decided to postpone the elections, which in effect is tantamount to de facto amendment of the Constitution. On the other hand, the same House is also appealing for constitutional interpretation. If the request for constitutional interpretation was meant to ensure the rule of law, the House of Peoples’ Representatives should have waited for the response from the House of Federation on its quest for interpretation. The House cannot decide to postpone elections and still be the mover for constitutional interpretation. 

Under the ordinary process, the House of Peoples’ Representatives would first take its decision, and then anyone aggrieved would resort to the House of Federation. In the current referral, the House is requesting advisory opinion on whether or not the government will have power after the beginning of October, without itself making such a decision on the issues. This is a travesty of of the core principles of justice. What is more, House of Peoples’ Representatives would also cede its role as a legislature and relegate the same to the House of Federation. Such action is merely shifting one’s burden to another in the hope of achieving legalistic justification for extension.

Finally, a textual reading of the provisions of Article 60 of the Federal Constitution offers a solution to the current debate. There is neither a constitutional lacuna nor dispute (at least so far) here in need of interpretation. In most cases, the Council has been acting as a court, only adjudicating disputes that required constitutional interpretation.

State of Emergency

State of emergency can only put limits on rights, it cannot prolong a constitutionally determined term of office. This clear from reading Article 93 of the Constitution that stipulates the substance and procedure for a declaration of a state of emergency.[7]  During a state of emergency the Council of Ministers has the power to suspend the political and democratic rights contained in the Constitution to the extent necessary to avert the conditions that brought about the declaration. The seven principles of legality (proclamation, proportionality, non-derogation, time limitation, exceptional threat and non-discrimination) apply. There are, however, some fundamental rights of non-derogation that the Council of Ministers cannot suspend or limit. These include the rights provided for in Article 1 which deal with changing the nomenclature of the State (ie Federal, Democratic and Republic).  Article 18 (prohibition against inhuman treatment) and Article 25 relate to the right to equality and are not subject to suspension or limitation. The unique emphasis this Constitution bestows on the Nations is shown in sub-Articles 1 and 2 of Article 39, which confer the unconditional right to self-determination on the part of Nations, Nationalities and Peoples, including the right to secession; their rights to self-rule and the preservation of their culture and language are also specially protected from any limit or suspension.

Under the constitutional rubric it is also clear that a state of emergency cannot be applied solely to extend the term of office of an incumbent administration, since this would violate several of the foregoing principles. Such an extension through promulgation of a state of emergency would not only undermine the fundamental rights to vote and run for public office, but also would reinforce the tendencies to a perpetuation of state of emergency that have occurred in many countries in Africa and Latin America.  Furthermore, Article 30 on the right of assembly, demonstration and petition, and Article 31 relating to freedom of association, could be seriously weakened under a prolonged state of emergency.

In general terms, heavy-handed measures such as states of emergency to meet a pandemic, or devices such as the widely mooted ‘war on terror’, have a propensity to outlast the epidemic or the terror itself; and just as the ‘war on terror’ can kill more people than terrorism, in Ethiopia a state of emergency may prove more dangerous than the virus it is designed to address.

States of emergency are akin to anaesthesia or painkillers: if taken alone without curative medicine for the cause of the illness and for long enough they can prove deadlier than the disease they are intended to alleviate. While pandemic disease may kill some people, a dictatorship could kill the nation and for this reason a state of emergency in Ethiopia as mechanism to extend the government’s term of office should be explicitly, categorically and immediately rejected. 

Caretaker government: the constitutional option

Article 58 of the Constitution, relating to the duration of tenure in the House, and Article 38 on the rights to vote and be elected are closely related to Article 60, which relates to the dissolution of the House at the end of its term. Following the dissolution, the governing party or coalition of parties will serve as a caretaker government, the core function of which, as its name suggests, is provisionally to hold the chair until an election is conducted and also to conduct the custodian affairs of government and organize new elections. As temporary custodian of government power it may not enact new proclamations, regulations or decrees, nor may it repeal or amend any existing law.

Though the matter is clearly and unequivocally covered by the Ethiopian Constitution, a caretaker government has attracted the least attention of all the available options although some of the legalistic arguments reject the establishment of a such a government, citing the need for strong, stable leadership to fight Covid-19. There are, however, two flaws inherent in this line of argument. First, it assumes that the current leadership is strong and stable.  Secondly, it assumes that the major containment mechanism for the pandemic is led only by the federal state.  Against this, one could argue that seldom in Ethiopia’s history has there been a weaker government than this one; many scholars have compared the current regime to the era of the princes (‘Zemen Mesafint’). The fact that the country has been a de facto confederation under some kind of direct military rule in most regions surely indicates a serious degree of fragility. One might well consider who is leading the effective fight against Covid-19 now – the federal government or the regions – and whether it is being carried forward by the state or by non-state actors. The strength of a government arises from its perceived legitimacy, gained through performance delivery and/or by implementing the democratic processes from which it derives popular legitimacy. The current government enjoys neither. Delivery of most public services has been halted due to social instability and the current constitutional crisis is a clear indication of the indifferent state of democracy in the country.  Regardless of Covid-19, unless the next elections are rigged, only those with a deep and loyal social base and a clear political agenda will emerge the winners.

Straddling law and politics

A Constitution must straddle law and politics. It is necessarily and desirably a legal code that extends into the public political arena and is too important to be left only in the dead hands of lawyers. Heated debate among Ethiopians is indicative of one critical issue: that although often presented as a series of technical constitutional options, the present debate is not solely a legal question but also a political one and its resolution must be political in nature. As the matter now stands, the postponement of elections is taking place during a dangerous transition period fraught with insecurity, contested legitimacy and serious misgivings as to the government’s ability to secure ownership of its policies.

Obviously, if the August elections are postponed, the parliament is not dissolved and a caretaker government is not formed, the state will be out of compliance with the provisions of Article 54 (1) and Article 58(3) of the Federal Constitution. More devastatingly, it will show the country that Ethiopia’s polity cannot – or will not – arrive at a constructive deliberative process. Emplacement of the government in power would be as far beyond the constitution as would be an unconstitutional stay in power.

If a compromise is not rapidly achieved an extension of the term of office could happen by default. Over the long term the possibility looms of a return to a tyrannical style of governance that will be met by popular domestic protests which probably will receive international support.   

Towards a pragmatic solution: an inclusive caretaker government

Absent a constitutionally satisfactory solution, the least satisfactory ones should be taken under consideration. The first option would be to conduct the elections on schedule, but that would be dependent on the progress of the pandemic and the measures that could be taken to mitigate infection. The second option would be to seek a pragmatic political solution to the constitutional deadlock in the form of a caretaker government, bearing in mind that the Constitution provides for such a government that could be established after the dissolution of the sitting administration.[8]

Decisions by a caretaker government are limited to the daily running of the state, thus avoiding decisions on major issues that might either constrain the next elected government or demand large-scale resources beyond those granted it through broad-based deliberations of political parties. The main purpose of such a government would be to hold elections as soon as possible and hand over power to an elected government.  ‘Inclusivity’ would be critical and could be exercised through consultation with, and participation of most key stakeholders, giving considering diverse views and positions, women’s interests and participation and equitable representation in public office. Such an inclusive government should operate within the minimum time-frame for the conduct of elections. This would demand political integrity, including the intention and determination to engage constructively and to implement agreements between the ruling party, the opposition and other key stakeholders.

A caretaker government would confer several political benefits on a country now facing a grave fragmentation of constituencies. If constituted through an inclusive and deliberative process and provided its members consist of select MPs considered neutral who will recuse themselves from elective and public office at the next election, it could offer Ethiopia a fresh start, constituting a trusted bridge to a new government formed through credible, free, fair and competitive elections. It could and should enhance transparency by issuing regular updates and media releases, conducting open interviews when the need arises and developing protocols for the release of information. In doing so it could also help Ethiopia ready itself for the competitive politics of coalition that may set in ahead of the elections. It may also be a confidence-building measure towards a transition to democracy.

Importantly, an inclusive caretaker government might help bring about tangible change towards peace and stability in Ethiopia.  If sanity is to rule, this avenue offers an historic opportunity to revisit the perennial challenge of Ethiopia – establishing consensus on the nature of the state and how it relates to its peoples. 

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