Ethiopia’s Continuing Constitutional Crisis

—Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg

[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]

On April 2, 2018 the Ethiopian parliament elected Abiy Ahmed as prime minister. This was not a regular appointment of a prime minister that we see in parliamentary systems. It was an appointment for a new beginning for Ethiopia after almost three decades of authoritarian rule. This is what prime minister Abiy Ahmed said in his first speech in parliament, what the people expected at home, and why the international community was enthusiastic about the political developments in the country.

In the early days of Abiy Ahmed’s premiership, it looked like Ethiopia was on the right path towards democracy. Political prisoners were released. Exiled politicians and political parties returned home. Several legal and political reform processes were started. Ethiopia seemed to give some hope for democracy amidst its global backsliding.               

In a dramatic turn of events, however, much of the enthusiasm about Ethiopia’s possible democratic transition changed to insecurity, violence, and even war that brought anxiety and desperation at home and huge concern abroad. In the past two and half years or so, many troubling things happened in the country: ranging from the displacement of millions of people from their villages, to the massacre of ethnic and religious minorities, to the destruction of property, to the crackdown of key opposition politicians, to a full-fledged war in the Northern region of Tigray.  

Now Ethiopia is in a full-blown constitutional crisis. Force, or the threat of use of force, is the new rule that solves or tries to solve political disagreements or disputes in the country. State institutions and their officials are unable and/or unwilling to perform their basic constitutional duties. The Constitution is no longer able to resolve disputes among political actors and, therefore, has failed in its primary task of keeping political disagreements within the boundaries of ordinary politics.  

Ethiopia’s constitutional crisis didn’t happen overnight. It brewed over twenty-five years. The lack of original legitimacy in the making of the 1995 Constitution and the subsequent infidelity to and flagrant violation of this constitution planted the seeds of this constitutional crisis. The 1995 Constitution is a “victorious constitution” authored by the Ethiopian People’s Revolutionary Democratic Front (EPRDF), a coalition of four ethnic-based parties that ruled Ethiopia from 1991-2018, excluding key political and demographic forces in the country. From 1995-2018, the EPRDF reduced the Constitution to a mere tool of legitimation and justification of their politics by primarily considering it as a “legal account of the nation’s history” rather than a fundamental legal document that binds and regulates the actions of the state, its officials, and its citizens. 

As a vanguard party, the EPRDF used revolutionary democracy – its guiding ideology – as the “empirical constitution” of the country from which detailed legal and policy principles had developed for the past three decades. Revolutionary democracy as applied by the EPRDF has several features, including democratic centralism, “one-to-five organization” of its members and the civil service, party evaluation, the developmental state model, and neopatrimonialism. Democratic centralism in the lexicon of revolutionary democracy, for example, refers to democratic deliberation and the unity of action within the EPRDF. Its democratic elements spring from its claim of “free deliberation” and its centralism is associated with the centrality of the decision-making processes within the party. The Central Executive Committee of the EPRDF was the final decision-making body within the party and, by extension, in the country. The formal state institutions simply legitimized and legalized whatever was decided by the EPRDF Central Executive Committee. Moreover, as the Tigray People’s Liberation Front (TPLF) was the dominant party within the EPRDF coalition, political power and authority in the country had been in the hands of a Tigrean elite and their close associates. TPLF/EPRDF’s strong security and military power and structure had ensured the practice of revolutionary democracy for almost a quarter of a century, against the central tenets of the country’s Constitution. 

However, nothing lasts forever. A popular protest movement in the country’s two largest regions – Oromia and Amhara – especially since 2015 forced the EPRDF to elect Abiy Ahmed of the Oromo People’s Democratic Organization (OPDO) as its leader and later as prime minister in 2018. Soon, Abiy Ahmed replaced revolutionary democracy with “Medemer”, which literally means “addition” or “working together in unity”, as the new political ideology of the EPRDF and, in 2019, transformed the coalition to a united party called the Prosperity Party (PP) that includes the ruling parties of all the regional states except Tigray (as the TPLF refused to join the new party). The transformation of the EPRDF to the PP made the TPLF the first opposition political party governing one of the regional states since the inauguration of the Ethiopian federation in 1995. 

These political changes and developments have brought the Constitution to the forefront after the end of TPLF/EPRDF rule. The postponement of the 6^th national election, which was scheduled for August 29, 2020, due to the COVID-19 pandemic created a constitutional conundrum. The Constitution requires the conduct of a national election one month before the expiry of the five-year term of the current administration in October 2020. In June 2020, in a contested constitutional interpretation, the House of Federation – the upper house of parliament with power to interpret the constitution – extended the term of office of Abiy Ahmed’s government and the term of office of the regional governments until the next elections are held, COVID-19 permitting. The TPLF and other opposition political parties considered this decision to be an illegitimate extension of power against the Constitution and contended that the power of the incumbent would expire in October 2020.      

The TPLF went even further. Despite the decision and repeated warnings of the House of Federation that a regional election would be null and void, the TPLF organized its own regional election in the state of Tigray on September 9, 2020. After winning 98.5 % of the seats of the Tigray regional council, the TPLF declared the federal government to be illegitimate. The federal government in turn declared the Tigray state government illegitimate. This made intergovernmental relations between the two governments extremely difficult and, later, impossible. 

Both the decision of the House of Federation and Tigray’s regional election were constitutionally problematic, to say the least. However, as the House of Federation is the final authority on constitutional interpretation, the TPLF had no option other than accepting the decisions of the House. These constitutional contestations and reactions between the TPLF and the federal government led to a “constituticide”: the Constitution ceased to be a legal arbiter of contending political and government actors.   

After constituticide, force took its natural course and war was simply a matter of time. On November 4, 2020, the TPLF attacked the Northern Command of the Ethiopian National Defense Force based in Tigray in what they called a “pre-emptive strike”, the ultimate aim of which was either to remove Abiy Ahmed from power or to take the upper hand in the “national dialogue” this specific context would have brought about. Soon, the federal government launched a military offensive against the TPLF. Even if the federal government removed the TPLF and established a transitional government for Tigray within a few weeks, the region is still an active conflict zone largely disconnected from the rest of the country. Since the start of the war in November, more than 59,226 refugees fled to Sudan; over 413, 849 people were internally displaced; and around 2.3 million people in the region need urgent humanitarian assistance.  

As the humanitarian crisis in Tigray continues, another troubling development has emerged in the Western region of Benishangul-Gumuz. Especially in the Metekel zone of Benishangul-Gumuz, there is a fundamental breakdown of law and order. Between the end of July 2020 and the beginning of January 2021, more than 101,000 people were internally displaced by violence, and many have been killed and continue to be killed by local armed groups. These displacements and killings are mainly directed at the ethnic Amharas, but ethnic Agews, Oromos, and Shinashas are also targeted. Although the federal government has deployed the army in the conflict area of the Metekel zone, the killings and displacements continue unabated. Precisely because of the ethnic nature of these killings and displacements, the Amhara region and its leaders may be forced to intervene in Benishangul-Gumuz to stop what some have called “ethnic cleansing”, which is part of a broader pattern in different parts of the country that some have even called “genocide”. Rather than intergovernmental relations and laws, the use of force or the threat of use of force seems to be, once again, the dominant factor in Metekel, at least for now. 

Amidst all these major national upheavals, the National Election Board announced that the postponed 6^th national election will be held on June 5, 2021. A lot has changed in the last year. Some of the major political actors have been eliminated from the political arena. The TPLF is no more. Key Addis Ababa and Oromia based opposition leaders are in jail. All these political developments raise genuine concerns about whether the coming election will be free, fair, and credible even before the polls. Most importantly, Ethiopia will be conducting the coming election under a fundamental breakdown of the rule of law, where the military is the major guarantor of law and order.

There is no easy way to restore the rule of law, reaffirm faith in constitutional institutions, or convince citizens to believe in the power of the law before the June 2021 election. However, the Abiy Ahmed government can take some measures to make the coming election peaceful and reasonably meaningful. First, it must recognize that there is a fundamental breakdown of the rule of law, and business as usual will simply push the country to the edges. Second, it should adopt a binding pre-election plan together with key political actors on how to move the country forward after the election, especially in healing social division and restoring social cohesion. Third, it should adopt a binding constitutional reform plan, again, together with key political actors on how to renew the peoples’ faith in the federal democratic republic of Ethiopia. Fourth, it should release jailed opposition leaders so that they can participate in the coming election. And finally, it should make the 6^th national election different from the previous five sham national elections by making it free, fair, and credible. These measures may help Ethiopia to be on the right path to democracy again, to contain the pervasive violence, and to establish a political community based on the rule of law that serves everyone who lives in it. 

Suggested citation: Berihun Adugna Gebeye, Ethiopia’s Continuing Constitutional Crisis, Int’l J. Const. L. Blog, Jan. 27, 2021, at: http://www.iconnectblog.com/2021/01/ethiopias-continuing-constitutional-crisis/