The Making of Ethiopian Constitution of 1995 (Part I)

Assefa A. Lemu

Introduction: In its history, Ethiopia got three constitutions: the monarchical constitution which was “given” to the Ethiopian peoples by Emperor Hailesellassie in 1931 and which was revised in 1955 and “re-given” to the peoples , the constitution of the Peoples’ Democratic Republic of Ethiopia (PDRE) of 1987, and the constitution of the Federal Democratic Republic of Ethiopia (FDRE) of 1995. The objective of this article is not to discuss the constitutional history of Ethiopia. Rather, it briefly discusses the process of the making of the current constitution which was adopted on December 8, 1994 and became effective on August 21, 1995.

The current Ethiopian constitution is under attack by various individuals and groups who have their own agenda. Some of these criticizers present the current constitution as a document written by TPLF/EPRDF sitting in a closed door and enacted overnight. The truth of the matter is different from this. Therefore, understanding the processes that the making of the current constitution passed through, the main provisions under criticisms and the alleged basis of those criticisms is important.

The Drafting Process: After taking government power in Ethiopia on May 28, 1991 and ruling the country for one only month as a provisional Government, EPRDF convened a National Conference from July 1 to 5, 1991 (https://www.youtube.com/watch?v=5UkwtgBD8mwhttps://www.youtube.com/watch?v=e61bzzbJF-k ) and the Conference established the Transitional Government. The Conference also adopted a National Charter https://chilot.files.wordpress.com/2011/11/the-transitional-period-charter-of-ethiopia.pdf ) which served as an interim constitution. The 87-member Council of Representatives of the Transitional Government of Ethiopia established a Constitutional Commission to draft a new constitution to administer the discussion on the draft constitution throughout the country. Mr. KifleWodajo who was the Secretary-General of the Organization of African Union (OAU) from 1963 to 1964 and Minister of Ministry of Foreign Affairs of Ethiopia from 1975 to 1977 (http://www.operationspaix.net/775-biographie-de-wodajo-kifle.html ) was appointed as a Chairman of the Constitution.  Mr. DawitYohanes of Amhara National Democratic Movement (ANDM) who later became the first Speaker of the House of Peoples' Representatives and served from 1995 to 2005 was appointed as a Secretary of the Commission.

 

The Constitutional Commission of the Transitional Government of Ethiopia (TGE) had various departments including the Regional Affairs Coordination Department in which the representatives of the nine Regions and two City Administrations worked for about two years (1993 and 1994). The Constitution organized public discussion from the grass root Kebele level to national levels. It also invited selected international constitutional lawyers, political scientist, historians, and other experts in the area to come to Ethiopia and share their experience and provide comments and advice on the draft constitution.  The constitution also organized various symposiums and forums on which the main draft provisions were discussed and debated Ethiopians. Various forums were organized for different social groups like women, youth, disabled persons, elders, community leaders, and religious leaders. Unless someone says he or she will not consider the popular discussion in which he or she didn’t take part as a popular discussion, myriads of  popular discussions were held on the draft constitution in all corners of the country.

One of the interesting features of the discussion on the draft constitution was that the discussion was conducted article by article. After discussion, the participants voted for and against each provision of the constitution. The votes were given for and against each provision and the votes were compiled at Kebele, District, Zone, Region, and national level. Those compiled results were presented to the Constitutional Commission members and discussed. On those provisions on which the consensuses of the Commission members were not obtained, the reasons of each side or alternative provisions, when available, recorded and passed to a Constituent Assembly elected in 1994 to approve a new constitution for Ethiopia. Those who think the current constitution was not discussed by the peoples in Ethiopia must make fact checking and refer to records. If we argue not to accept a constitution which we didn’t write or for which we didn’t vote or if we turn against it every time we lose our government position, then we will not have one.

Even though, most of the records dealing with the process of constitutional drafting are not available on line, few are available and may give some hints.  For example the discussions made by the constituent assembly on Federal flag are available here: (https://www.youtube.com/watch?v=ip5yV1YKmZw ), (https://www.youtube.com/watch?v=AlOP1pbeU68 ).

Main Provision of the Constitution Under Fire:

1. Article 39-The number one provision of the Ethiopian Constitution which is under attack is Article 39, Rights of Nations, Nationalities, and Peoples. The proponents of this article say that this article didn’t give new right to the nations and nationalities, but simply recognized the right they have and entitled to. This is the right recognized by the UN in the International Covenant on Civil and Political Rights adopted by the General Assembly of the United Nations on December 19, 1966.  Article 1(1) of the convention says “All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development” (https://treaties.un.org/doc/publication/unts/volume%20999/volume-999-i-14668-english.pdf ). However, the antagonists of Article 39 see it as Pandora box to disintegrate the country. Even though the dominance of voice on the Internet may not lead to the actual constitutional change, those who curse the constitution because of Article 39 are more vocal than those who support the constitution because of this same article.

 

2. The Ethiopian Flag- Article 3 (1) of the constitution says “ The Ethiopian flag shall consist of green at the top, yellow in the middle and red at the bottom, and shall have a national emblem at the center”.  Accordingly, the Flag and Emblem Proclamation No. 16/1996 (https://chilot.me/wp-content/uploads/2011/01/proc-no-16-1996-flag-and-emblem.pdf ), Proclamation No. 48/1996 Flag and Emblem (Amendment)  (https://chilot.me/wp-content/uploads/2011/01/proc-no-48-1996-flag-and-emblem-amendment.pdf ) and Flag Proclamation No. 654/2009  (https://chilot.me/wp-content/uploads/2011/01/flag.pdf ) enacted.  The opponents of Article 3 of the constitution, gave different meanings to the logo of the FDRE and the flag introduced by the constitution and subsequent laws and rejected it. The Ethiopian government basically failed to enforce its ownconstitution and laws in this regard. It is bizarre to see something legal considered illegal and vice versa. Ethiopia is becoming a country where mob makes the law and where the leaders follow the crowd rather than leading the crowd.

 

 Article 3(3) of the constitution of FDRE also authorizes the member states of the Federation to have their respective flags and emblems. However, the pro unitary groups are denouncing having state flags and emblems. Few vocal individuals are trying to give guidance to the government through the TV stations, radios and internet. The majority is simply in the receiving mode. As Plato said "One of the penalties for refusing to participate in politics is that you end up being governed by your inferiors." That is what we are observing in Ethiopia.

 

3. Article 47, Member States of the Federal Democratic Republic- Article 47 of the constitution lists the member states of the Federal Democratic Republic of Ethiopia and enshrines the right of Nations, Nationalities and Peoples to establish their own States. The same group that attacks Article 39 also attacks Article 47 of the constitution. They advocate for the drawing of state boundaries along the geographic line like rivers, mountains, valleys or imaginary lines like longitude and latitude or economic lines like coffee grower, khat grower, farmer, pastoralist, etc.  Rather than explaining what the law says, Ethiopian Government officials became the victims of this argument and adding confusion. For example, Prime Minister Dr. Abiy said “bekililochmekakelwesenenjidinberyelem”. What is the difference between “wesen” and “dinber”? According to Amharic to English Dictionary, “wesen” is border and “dinber” is boundary. The explanation doesn’t hold any water except trying to play with words. The point is that the top government officials are trying to follow the noise rather than the law. They are trying to jump into the bandwagon of the noise makers rather than standing firm in the right place and attracting them.

 

4. There are other major articles of the constitution that are under attacks including  the following:

4.1  Article 40 (3) which says “Land is a common property of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange”. Some want land to be sold like any ordinary commodity.

4.2  Article 45 which says “The Federal Democratic Republic of Ethiopia shall have a parliamentarian form of government”. Some want presidential form of government.

4.3.          Article 5 whichsays “1. All Ethiopian languages shall enjoy equal state recognition. 2. Amharic shall be the working language of the Federal Government”. Some want this to be changed and say “Amharic is the official language of Ethiopia”.

 

4.4.          Article49 which stipulates “the special interest of the State of Oromia in Addis Ababa”.

 

If my time allows, I will discuss in the opinions of the proponents and opponents of the articles of the constitution listed under item number 4 above and others. I will also discuss the paradox of the stance Ethiopian Government officials on the constitution, for example, objecting the principles of the constitution and appointing individuals like Mrs. MeazaAshenafi who was the Legal Advisor of Ethiopian Constitutional Commission (https://fanabc.com/2018/11/%E1%8B%88-%E1%88%AE-%E1%88%98%E1%8A%A0%E1%8B%9B-%E1%8A%A0%E1%88%B8%E1%8A%93%E1%8D%8A-%E1%88%88%E1%8C%A0%E1%89%85%E1%88%8B%E1%8B%AD-%E1%8D%8D%E1%88%AD%E1%8B%B5-%E1%89%A4%E1%89%B5-%E1%8D%95%E1%88%AC/) , as a head of the judiciary to interpreted the law and automatically becomes  president of the Council of Constitutional Inquiry perArticle 82 of the constitution. Appointing TayeAtsikesellasieAmde who was the member of Forum 84 and Head of the Public Relation Service of the Constitutional Commission as a Permanent Representative of Ethiopia at UN (https://www.un.org/press/en/2018/bio5138.doc.htm ) is also another example. The weird thing is those who attack the constitution are happy about the appointment of such individuals who played significant role in the drafting of that same constitution.

 

It is very difficult to reasonably expect the government and parliament that do not honor its own constitution and laws to honor human and democratic rights of its citizens. It makes me doubt the truthfulness and integrity of a Head of Government who took the position through parliamentary system and says I wish I was elected by all citizens following presidential system of government. It also makes me doubt the integrity and capacity of the parliamentarians who in 2012 endorsed the appointment of three Deputy Prime Ministers  in violation of  Article 75 of the constitution which authorizes having only one Deputy Prime Minister  and  again endorsed the appointment of Head of State (President of FDRE)  in violation of  Article 8 of Proclamation No. 255/2001 (http://www.fsc.gov.et/content/Negarit%2 ... e%20Fe.pdf), Administration of the President of the Federal Democratic Republic of Ethiopia,  which instructs "Where the President, before the termination of his term of office, discontinues his service due to illness, death, resignation or due to his conviction, the House of Peoples' Representatives and the House of the Federation shall, by an extra-ordinary joint session convened by the Speaker of either of the Houses or by the Speakers of both Houses jointly, designate an Acting President”.  They keep violating the constitution and other laws of the county and plan to violate more and expect us to keep quite. Even though we don’t own TV or Radio station,we will not remain silent when imminent danger is posed on our rights.

 

(Source: Aiga Forum)