I read a commentary by a colleague, Wondwossen Demise Kassa titled “How would the Unelected Assume State Power constitutionally…” as appeared in Addis standard on June 1st, 2020. A very concise, well-argued piece. In the article, Wondwossen highlighted the challenges we are now facing regarding the fate of the government and the Representatives of both Houses beyond October 2020. And he did so purely arguing and invoking Constitutional stipulations, rightly disregarding non-constitutional political solutions that are congesting the political environ of our country. Wondwossen, however, stayed short of proposing concrete options or a better way forward to overcome the prevailing crisis.
Recently, I wrote a piece in Amharic (posted on Zehabesha and Aiga Forum etc) on the same subject where I argued against possible “one-time” decision by the Council of Constitutional Inquiry (CCI), that may give the incumbent government and Representatives of both Houses, a mandate to continue beyond the expiry date of their current tenure.
I suggested the CCI/HoF to instead decide to invoke Articles 104 and 105 of the Constitution and amend Article 54 to include a sub-article that inter alia bestows the mandate to an incumbent government and members of both Houses to continue business as usual beyond their tenure due to an officially declared State of Emergency (SoE).
Wondwossen, invoking Article 54(1) and 58(3) of the Constitution argues “if election and only election were the only constitutional source of power, there would be no party to satisfy this precondition for this period of time” i.e. beyond October. He also argues and rightly so, that according to Article 9(3) of the Constitution “[i]t is prohibited to assume state power in any manner other than that provided under the Constitution”. He further argued that Article 9(3) does not “rigidly prohibiting seizing power in any manner other than through election……but it requires only that power be assumed in accordance with the Constitution”.
In Wondwossen’s view, prohibiting assumption of power through other means than through election, is different from assumption of power only in accordance with the Constitution. In other words, Article 9(3) holds a notion of possibility of seizing power constitutionally but using means other than election. In his view, the incumbent government and Representatives in both Houses won’t be elected officials beyond October, but they can still remain in power because Article 9(3) allows access to power through means other than election. That is where I disagree with Wondwossen.
Article 9(3) clearly stipulates that assumption of political power is unthinkable if not as per stipulation of this very Constitution. And under Article 54(1) the Constitution clearly stipulates the mandatory manners to be applied to assume political power. So there is no inconsistency between these two Articles and no room for interpretation. 9(3) strictly forbids assumption of power using means that are not provided in the Constitution and the means that is necessary to assume power is clearly marked under 54(1) of the Constitution and that is ELECTION.
I believe, Wondwossen, while recognizing that assumption of power for example through coup d’état or revolutionary methods are not provided in the Constitution, therefore un-Constitutional, alludes that CIC / HoF should come up with some kind of decision in favor of extension of the tenure of the incumbent government and Representatives of the two Houses even though they are not considered to be elected officials / Representatives beyond October 2020. Two inter-related issues here:
first: In my view, Articles 9(3) and 54(1) are complementing each other. One clearly stipulates that political power can be assumed ONLY as per stipulations in the Constitution, and the other one stipulates that Members of the House of Peoples’ Representatives shall be elected by the People for a term of five years ONLY on the basis of universal suffrage and by direct, free and fair elections held by secret ballot. So, the ONLY way to assume political power is through the means provided in these two Articles i.e. election. That means, there is no ground to assume that article 9(3) left a room for interpretation that power can also be seized through other means than through election.
second: The current Executive Body and members of the two Houses were “elected” constitutionally, although we all know that the election was widely believed to be rigged. The seats at the two Houses are totally occupied by members of one party - EPRDF leaving not even a single seat for opposition. Even after changing its name to Prosperity Party (PP) and the subsequent withdrawal of TPLF from the coalition, EPRDF, still enjoys the absolute majority in both Houses.
Hence, in the absence of shift of power within the Houses and a never conducted vote-of-confidence in both Houses where the Ruling Party would have lost the “confidence” of the Representatives, the incumbent Representatives are presumed to remain elected officials, even if their tenure is “legally” extended beyond October. Therefore, the argument that the current Representatives are no more elected Representatives after their term expires in October, even if the CiC/HoF decides (which I am personally against, but for different reason) in favor of extension of their tenure, shall have no legal ground.
Some experts in the field genuinely argue that amending the Constitution to allow an incumbent to remain in power beyond the normal tenure following declaration of state of emergency will make it easier for dictators to declare an emergency and invoke the article in the Constitution to remain in power beyond the regular term.
Hence, they argue, instead of amending the Constitution, it is advisable that the House of Federation (HoF) passes a one-time decision to allow the incumbent to continue beyond its original tenure. In their opinion, a one-time decision is better than amending the Constitution, because the HoF decision does not come automatically but rather after passing through layers of scrutiny – from the House of Representatives (HR) to the HoF, HoF to the CIC and from CIC back to the HoF and finally from HoF to HR.
This three-staged procedure by itself, they argue, makes it difficult for potential dictators to manipulate the system for the purpose of extending their grip to power. A reasonable argument but only if we conclude that there will be no genuine democracy in the country in the future hence, the HR and HoF shall be filled with members of a single party only.
I am assuming of the opposite, a rather positive one i.e that there will be a culture of democracy in our country based on which the parliament shall be filled with representatives from different parties and that these elected Representatives shall be loyal only to the Constitution, their constituencies and their conscious.
In that case, they shall not contemplate to remain in power beyond their tenure as stipulated in the Constitution for no good reason other than for the good of the people but if they do, they do it constitutionally. Therefore, it is advisable for the HoF to decide that Articles 104 and 105 are invoked to amend Article 54 to fill the gap and allow the incumbent and as a matter of fact, any government in the future to remain in power during such legitimate emergencies as those listed under Article 93(1)(a and b) of the Constitution.
To conclude, and back to Dr. Wondwossen’s piece, I argue that there is NO contradiction between Articles 9(3) and 54 of the Constitution. They are rather complementary. Hence, it is right to conclude that the Constitution does NOT provide for any other means of assuming power except through universal, direct and fair election. By derivation, because the current Representatives in both Houses were “elected” five years ago, what is left is for the HoF to decide in favor of Constitutional amendment to allow the incumbent “elected” representatives and the Government to continue with their function as elected Representatives until the next election.
It is right to conclude that the Constitution does NOT provide for any other means of assuming power except through universal, direct and fair election.
To suggest “other Constitutional means” to assume power is tantamount to opening a Pandora box that contains all kinds of unconstitutional means including coup d’état.
Geneva, 6 June 2020
*****
The writer can be reached at: wakwoya2016@gmail.com
