Tigray security forces parade; 2 August 2020; social media
Editor: William Davison
Both the House of Federation and Tigray’s government are acting unconstitutionally. Unless the mutual antagonism ceases, conflict may ensue.
The letter, as the Speaker of the House explained on the national broadcaster, condemned the decision of the region to hold an election as unconstitutional, a threat to the federal order, and blatant violation of the HoF’s decision to postpone the 29 August 2020 national election. While the major part of the letter was a recommendation to the regional council to halt the “unconstitutional” election process, it also warn that the federal government would take “necessary and proportional measures”, including ordering an intervention to contain acts that endanger the constitutional order.
In its response to the HoF, Tigray State Council blames the new Speaker of the house for acting beyond his power and regarded the HoF’s request to call off the regional election as a transgression of the right to self-determination of the region and its people. Besides, the regional council alleged once again the unconstitutionality in the HoF’s resolution extending the terms of the federal houses and regional councils until the undetermined post-COVID-19 national election.
One of the issues that was not very extensively debated during the process that led to the HoF’s resolution extending the August election was the fate of the regional governments. To my knowledge, only once (during the amicus curie briefing) that the Council of Constitutional Inquiry (CCI) panel had raised the issue, though indirectly, to one of the experts who testified before the CCI. But there the expert addressed the issue indirectly, asserting that the regional councils are also crucial for the continued functioning of the government.
It was the House of Peoples Representative (HoPR) that referred the question of constitutional interpretation due to COVID-19 pandemic to the HoF. The main questions presented to the upper house concerns the fate of the federal government if the national election could not be held due to COVID-19 and the consequent state of emergency. The fate of regional councils was not explicitly mentioned in the question for interpretation. Indeed, the HoPR does not have a mandate to do that.
Apparently, it was the panel of the CCI that of its own volition took up the issue and made the recommendation extending the terms of the regional councils as well. Ironically, as Tigray Regional Council has rightly put forward, such a decision was made by the CCI without any request made by any regional councils. Nor was there a consultation or discussion involving the regional councils on the issue. I guess, the recommendation of the CCI was a surprise not only to the public but to the regional governments too. Nonetheless, the recommendation was ultimately endorsed by the HoF.
Under the FDRE Constitution, the power to interpret the constitution is vested in the HoF which is assisted by the CCI. This power evidently pertains to constitutional issues that fall under the jurisdiction of the federal government. The HoF does not have any explicit or implicit power related to regional councils or matters regulated under regional constitutions. It is here that the major fault of the recommendation of the CCI endorsed by the HoF comes out.
Almost all the constitutions of the regional states have a system for interpretation of their respective constitutions. While the majority of them set up a constitutional Interpretation Commission which is composed of a representative from each wereda councils, the Southern Nations, Nationalities, and Peoples Regional State Constitution bestows the power on the region’s upper house—the Council of Nationalities. They are also assisted by regional councils of constitutional inquiry. It was the mandate of these commissions to interpret their respective regional constitutions and pass a resolution, at least in the same way as the CCI did, extending the terms of the regional governments. Evidently, the HoF’s decision bypassed the constitutional limit on its power and interfered with the powers of the regional states.
In hindsight, both the CCI’s recommendation and the HoF’s decisions concerning regional councils were targeted at recalcitrant regions, specifically Tigray. One can see this given the decision of the Executive Committee of TPLF to hold regional election made one day before the HoPR’s decision to go for a constitutional interpretation. Thus, the HoF’s sweeping resolution was implicitly meant to set aside the procedure under regional constitutions and deny the government in Tigray leeway. But it did not work. Rather, the regional government went extra miles to adopt regional electoral law, setup an election commission, and has almost finalized the preparations for a regional election.
A cursory look at Articles 51(15) and 102 of the federal constitution is sufficient to learn that the power to run elections in Ethiopia goes to the federal government. The regional governments do not have power over such exclusively federal matters unless delegated by the federal government (Article 50(9)). Thus, as much as the HoF cannot extend, by its own initiative, the term of regional councils, regional governments do not also have the constitutional power to adopt regional electoral laws and run elections unilaterally.
The government in Tigray is very well aware that its actions do not have any constitutional basis. Thus, it has resorted to the right to self-determination and secession (Article 39). Legally speaking, the right to self-determination has got less to do with a local election. Particularly, in the existing-ethnic based federal system where ‘self-government’ is the mantra, it is hard to conceive that postponing a national election transgresses the right to self-determination unless the existing council was annulled and a sort of proxy was imposed. Rather, Article 39 might be chosen to signal a distinct message–that the government in Tigray is building the case leading up to secession.
The HoF through the Speaker has reiterated that further measures could be taken if Tigray Regional Council does not abort the election process. The latter, on its part, disregarded the warning. At the extreme, the HoF could suspend the regional government from the House and could also request suspension of the budget and grant to the region. Military intervention by the federal government is unlikely given the probable catastrophic consequences. But it is possible given the precarious relationship between the Tigray and federal governments, and also between Tigray and Amhara regions. In the meantime, given the unconstitutional act of both the HoF and Tigray’s government, they must step back and restrain themselves from further escalatory actions. The government in Tigray should also reconsider the election if the tit-for-tat halts and the two governments are genuinely ready to smooth out their relationship.