Original analysis at https://www.ethiopia-insight.com/2020/05/18/the-limits-of-legal-solutions/
An inclusive caretaker government is a better option than a suspect constitutional interpretation process controlled by the incumbent
Given that the World Health Organization says the coronavirus is here to stay and we must learn to live with it, partly as vaccines and treatments may take years, how can the need to safeguard our physical, political, and constitutional health be balanced?
If the current constitutional debate is to be resolved constructively, the solution needs to meet three requirements that could be difficult, not necessarily impossible, to achieve at once.
First, due to the pandemic’s likely longevity, questions related to the election schedule should be considered. This raises epidemiological considerations with legal implications: When does this pandemic constitute force majeure? What conditions justify election postponement? And who assesses those conditions? What is the fall-back plan if the pandemic does not end within months?
Second, the solution has to be constitutional—both in letter and spirit.
Third, it has to set the tone for resolving the country’s political divisions and frailties, especially the government’s legitimacy deficit.
Health imperative
Clearly, during pandemics, the trade-off between public health and fundamental rights such as voting, freedom of movement, and elections, is a delicate one. While public health considerations may sometimes trump fundamental rights, they should be viewed only as short-term measures. In the case of COVID-19, the science indicates that the efficacy of restrictions depends on localised factors. Granted, many—if not most—aspects of the pandemic remain uncertain but some facts are uncontested.
COVID-19 is highly infectious; its spread can be slowed by physical distancing; and restriction on movement should give governments and other stakeholders more time to prepare their response. Although some stringent measures have been taken in Ethiopia, they are less strict restrictions than many other countries. Of course, if the number of COVID-19 cases surges, the government will be questioned. Moreover, election cannot be undertaken lightly in Ethiopia, which is already embroiled in a contested transition.
But there are also many unknowns about the pandemic. And a decision of great consequence, such as scheduling elections, should consider all factors. As an example, the peak infection time is hard to predict, though models suggest that Ethiopia will have passed the worst of the pandemic by now. 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, 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 that is vital for the legitimacy of the government—not to say the very survival of the country—on a notional end to the pandemic is ill-advised. An interminable wait for an ill-defined end to the pandemic in order to determine the fate of the country cannot be always sensible. It is not clear if the electoral board has considered the available risk-reduction mechanisms that would allow elections to go ahead relatively safely. Such mechanisms are being widely used in the meetings, economic sphere, education, and public health to avoid a total disruption of essential supply chains. Life goes on—even under Covid-19. Note that as many elections are still scheduled as are being postponed.
While no one wishes for elections to be conducted in a manner that exposes people to COVID-19 infection, the epidemiological basis for the board’s decision should be made public. A timeframe for the elections should also be set, whether it is three months, a year, or three years. This is about evidence-based policy making, not the law or politics.
Constitutionality imperative
The ongoing proceedings of Council of Constitutional Inquiry (CCI) not only set a precedent but are politically sensitive. The CCI needs first to address the question of jurisdiction. For this, it should only consider the legal questions of whether the constitution supports abstract interpretation, and whether the CCI should offer an advisory opinion in the absence of an aggrieved party seeking remedy to a matter it considered unconstitutional. Submissions to the CCI must show that a law, practice, or decision of a government organ violates the constitution. No constitutional provision confers any advisory powers on the CCI. None of the sub-articles of Article 62 can be construed as permitting an abstract interpretation. Article 62 is not one of the provisions cited by the House of Peoples’ Representatives (HoPR), when it referred the case to the House of Federation (HoF). As per Article 84, which is more relevant to the CCI, constitutional dispute is a sine-qua-non for triggering constitutional inquiry.
Proclamations and previous practices of the HoF and CCI cannot be used as a basis to determine constitutionality of proclamations, decisions, or practices. The constitution determines their constitutionality, not the other way around. The same principles are upheld in the proclamations related to the CCI.
If the HoF offered an advisory opinion in the past, it violated the constitution. The reasoning is simple: if the framers of the constitution had intended to grant the upper house that power, they would have done so unequivocally. Moreover, the CCI may have consented to the enactment of laws necessary for building one economic community, but this is not strictly constitutional interpretation. In such cases, the CCI discharges its powers based on factual and legal considerations, which may not require interpretation. No proclamation or previous decision to request an advisory HoF opinion should be used as the basis for abstract interpretation.
As to other countries permitting abstract interpretation, such an argument have academic benefits, but lacks legal merit. The peculiarities of Ethiopia’s constitutional processes take precedence over the experience of other jurisdictions. In any case, a significant number of organs involved in constitutional interpretation in other countries provide neither advisory opinion nor abstract interpretation because of limitations imposed by law or legal tradition.
Constitutional silence
Constitutional silence does not justify extending terms of office in violation of the constitution. There could be constitutional silence, but solutions must be constitutional. The constitution is not silent on who has what power, and the term of office of the power holder. A State of Emergency (SoE) limits rights but it does not extend a term of office. Proposals relating to the issues of holding election during State of Emergency were discussed by the framers but they deliberately omitted them. Its silence in some areas should not be employed as a means to bestow powers to any institution that is not clearly or originally conferred by the constitution.
The extension of a state of emergency should be a rarity as it would not only undermine the fundamental rights to vote and run for public office, but would also reinforce the tendencies to perpetuate a SoE that have been seen in many countries in Africa and Latin America. Extension of a term via an SoE is the least constitutional and politically the most dangerous option. The interpretation and application of the constitution during an SoE should not be any different from normal. A crisis does not justify a selective or substandard interpretation of the supreme law of the land.
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 emergency. Heavy-handed measures such as states of emergency to combat a pandemic—or, in a different context, devices such as the ‘War on Terror’—have a propensity to outlast the epidemic, or the terrorism. In Ethiopia, an SoE may prove more dangerous than the virus itself.
In the same vein, the provisions of the constitutions, both federal and regional, may have been previously abused for political exigencies, but that is not a basis to disregard them now. The people of Ethiopia are the glue holding the country together, and the constitution is the ultimate guide for the legitimacy of actions that affect them.
Arguments about constitutional silence can be misused for political agendas that subverts the constitution itself. Given the fractious and fragile condition of Ethiopian politics, the CCI should desist from any activism in the absence of trust and shared understanding of many constitutional issues.
Caretaker case
Constitutionally speaking, the current houses end their term in October by virtue of Articles 54 and 58. The remaining option is the dissolution of the houses and the formation of a caretaker government. Article 60 provides for the dissolution of the HoPR to conduct elections within six months. Following dissolution, the incumbent will act as caretaker, the core function of which is to be the custodian of the affairs of government and to organise new elections. This means it may not enact new proclamations, regulations, or decrees, nor may it repeal or amend any existing law.
Three counter-arguments have been presented for this option.
The first is the fact that dissolution allows for an election before the end of term of office and parliaments are generally dissolved to end, not extend, their terms. Once parliament is dissolved, a caretaker government is formed. If the new term begins on the Monday of the final week of the Ethiopian month of Meskerem, as the constitution prescribes, as a matter of law, there would not be a house to dissolve at that point, as its term will have ended. While it’s true that caretaker governments are mainly formed to avoid power vacuum after the dissolution of a parliament and before a new elected government takes over, there are a few cases of caretaker administrations in extraordinary circumstances such as war and arduous transitional periods; the latter is the situation we find ourselves in.
The second argument against a caretaker government is the fact that there will be no parliament to oversee the implementation of the state of emergency. To a degree, this is valid, but the pandemic is a public health issue that could be contained by the executive more than the legislature. As per Article 93 (3), the current house can extend the SoE for six months before its dissolution. During an emergency, the executive branch, in this case, the caretaker government, is more potent in implementation.
The third argument is the related claim that the fight against COVID-19 requires stable, strong leadership, both at the federal and regional levels. The strength of a government emanates from its legitimacy, which in turn comes from the delivery of public goods and/or popular support. The current government is struggling with both. It has a legitimacy deficit for many reasons, not necessarily all of its own making. Rather than doubts over whether it meets constitutional requirements, the question is whether a caretaker arrangement would address this legitimacy deficit.
Political imperative
There are two ways to address the legitimacy deficit: establishing a broad transitional government of national unity that brings together the pockets of dispersed legitimacy and power centres together. Many political forces and others have demanded this for a long time. However, it is unconstitutional, as the constitution under Article 60 stipulates that the caretaker should elected representatives.
Arguably, a caretaker government would not address the legitimacy deficit—unless it is inclusive. The caretaker mainly runs the state and steers clear of decisions that could be consequential for the next elected government. Its main duty will be to oversee the elections. For the caretaker to deliver its mandate, it will need to be supported by a diverse set of actors. Its decisions must be taken after thorough consultations with all stakeholders. This demands political integrity, engaging constructively to implement agreements between the ruling party, the opposition, and other stakeholders. In practice, the existing Joint Council of Political Parties could be repurposed and expanded through an act of the current parliament to serve as a platform to deliberate and offer recommendations on critical issues related to election preparations. It may also confer more powers to such a body if parliament wishes.
As the county faces grave fragmentation, a caretaker government would also confer political benefits. It could offer Ethiopia a fresh start if constituted through an inclusive process and provided its members consist of neutral officials and lawmakers who will recuse themselves from office at the next election. This would be a trusted bridge to a new government. It could and should act transparency. In doing so, it could also help Ethiopia ready itself for future competitive coalition politics.
A constitution must straddle law and politics. While a caretaker government offers the legality, the inclusive consultative process addresses the politics. Even a ‘constitutional silence’ is best filled with the sound of an inclusive, deliberative political process.