Wednesday, December 12, 2012
Ethiopia: On Constitutional Absurdities
By: Alemayehu Fentaw Weldemariam *, Eurasia Review
“Those who can make you believe absurdities can make you commit atrocities.”— Voltaire
On November 29, 2012, Ethiopia’s Prime Minister, Hailemariam Desalegn, conferred the rank of deputy prime minister, with the approval of parliament, on Muktar Kedir, chief of staff at the Office of the Prime Minister, and Debrestion Gebremichael, Ph.D., Minister of Communications and Information Technology.
My aim in this essay is to examine the constitutionality of the appointment of the two new Deputy Prime Ministers and critique the claims so far made as to the constitutionality of these recent appointments by Prime Minister Desalegn.
Since the announcement of the appointments, all manner of claims, if not arguments, have been made in support of the constitutionality of two additional Deputy Prime Ministers. What these claims and arguments share in common is one thing – absurdity. As an example, I would like to highlight the contribution of Tamrat Gebregiorgis, the managing editor of Addis Fortune, who stated in an interview with the Voice of America Amharic Service, that there existed a “precedent” for the constitutional justification of the appointments. One can’t help but wonder whether Gebregiorgis has the slightest idea what precedent means to the constitutional scholar or what the role of the doctrine of stare decisis is in the Ethiopian legal system. He also said that in the United States, people can be appointed to be deputy bureau heads and yet conferred the title of ambassador. Gebregiorgis’s contention does not stop there. He goes on to claim that it’s the “prerogative” of the Prime Minister to appoint as many Deputy Prime Ministers as he wishes. How did Gebregiorgis arrive at this constitutional wisdom that even well-respected Ethiopian constitutional law scholars seem to lack?
However, one thing is crystal clear, and that is that the current Ethiopian Constitution does not provide for multiple Deputy Prime Ministers. Rather, the Constitution provides for a single, undivided, post of the Deputy Prime Minister in the same way as it does for the Prime Minister. The Prime Minister, moreover, does not have the constitutional authority to create new ministerial posts or executive offices. The Ethiopian Constitution provides the Prime Minister with the authority to fill executive offices by appointment, with the approval of the House of Peoples’ Representatives of the Ethiopian Parliament, but the Constitution does not invest the Prime Minister with the power to create new executive offices. This is evident even from a cursory perusal of Articles 75 and 74(2) of the constitution. My reading of the letters and spirit of the constitution is that the post of the Deputy Prime Minister is as undivided and singular as that of the Prime Minister. Given this textual reality, the recent appointments are clearly unconstitutional. However, in Ethiopia, if the needs of the executive come into conflict with the constitution, too bad for the constitution.
Article 77 on the “Powers and Duties of the Council of Ministers” also stipulates in section 2 that the Council of Ministers “shall decide on the organizational structure of the ministries and of other administrative agencies responsible to it and to the ministries. It shall coordinate their activities and provide leadership.” As can be gathered from this provision, the Council of Ministers has the constitutional authority to “decide on the organizational structure of the ministries”, and not the Prime Minister alone. Besides, what the Council of Ministers can do is to pass a “decision”, not to issue a proclamation as to the organizational structure of ministries. Even to “decide on the organizational structure of ministries” does not mean to create additional ministerial offices or posts only by a decision of the Council of Ministers, which is to be issued in the form of regulations, as opposed to proclamations.
Those constitutional powers are not invested with the Council of Ministers, but with the House of Peoples’ Representatives, as is clear from Article 76(3), which stipulates that “[i]n all its decisions, the Council of Ministers is responsible to the House of Peoples’ Representatives.” Article 76(3) only states that the Executive has the power to “decide” on the issue under consideration. This means that the Council of Ministers must submit its decision on the organization of the structure of the ministries to the House of Peoples’ Representatives for approval. It is evident that Article 76 is about the power to change the internal structure of existing ministries, but not about creating additional ministerial posts. This can only be done first by amending Article 75 of the Constitution that provides, in no uncertain terms, for a singular and undivided office of the Deputy Prime Minister. Moreover, even when approved by the House of Peoples’ Representatives, it has to be issued in the form of a proclamation, not a regulation, to amend the existing proclamation for the Definition of Powers and Duties of the Executive Organs. Even such proclamations cannot amend the Constitution. This is called the “hierarchy of laws”, which is part of the ABC’s in legal training in any legal system at any law school.
An additional argument justifying the appointments of the two additional deputy prime minister appointees is that they are not really deputy prime ministers, even if they hold such a rank. This argument also flies in the face of the reality on the ground. What do you call these newly-appointed-only-in-rank-deputy-prime ministers? They are left nameless, despite the fact that official sources have been referring to them as “cluster-coordinators,” although nobody knows what the hell that means.
This poses a very serious accountability issue. Accountability is a cardinal constitutional principle and it saddens me to see that defenders of the current appointments have missed its salience. Now the question is who are the new deputy prime ministers accountable to, as distinct from current Deputy Prime Minsiter Demeke Mekonnen, who is constitutionally accountable to the Prime Minister. In other words, if there’s only one Deputy Prime Minister in the person of Demeke Mekonnen, then who are the additional two deputy prime ministers accountable to? It is not possible for the new deputy prime ministers to be accountable to Deputy Prime Minister Mekonnen, as he is only the first among equals (primus inter pares). In addition, are the new deputy prime minister going to be members of the Council of Ministers on par with Demeke Mekonnen? Who is going to chair the meetings of the Council of Ministers in the absence of the Prime Minister? Which of the additional deputy prime ministers will chair the Council of Ministers in the absence of both the Prime Minister and the constitutionally mandated Deputy Prime Minister?
The current appointments have also not been envisioned in the Constitution or in the Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation No. 691/2010. In addition, whatever eventual division of executive powers made among the three deputy prime ministers will also violate the Constitution and the Proclamation.
Another, but related issue, has to do with succession. As Mekonnen Kassa put it, “God forbid, if the current PM Hailemariam were to pass, who would be in line to become Acting/Interim PM?” In other words, would they promote all three of them on a fast-track to premiership? The impression that the present appointments and the whole unfolding political drama gives me is that this body politic called Ethiopia is being run as if it were in a state of emergency. This is a sad state of affairs, as governance in Ethiopia needs to be rooted in a stably anchored constitution and constitutionalism.
If there was a need for three deputy prime ministers, what legal process should have been followed? The procedure for constitutional amendment set out in the Constitution itself must be strictly adhered to. First, a proposal for amendment has to be initiated, and according to Article 104 of the Constitution, “Any proposal for constitutional amendment, if supported by two-thirds majority vote in the House of Peoples’ Representatives, or by a two-thirds majority vote in the House of the Federation or when one-third of the State Councils of the member States of the Federation, by a majority vote in each Council have supported it, shall be submitted for discussion and decision to the general public and to those whom the amendment of the Constitution concerns.” Second, the proposed constitutional amendment must be approved by a two-thirds majority vote of both the House of Peoples’ Representatives and the House of the Federation, in a joint session, and in conjunction with two-thirds of the State Councils’ approval of the proposed amendment by majority vote (see Article 105(2)).
The Ethiopian Government alleges that there’s only one deputy prime minister and the new additions are only coordinators of clusters with the rank of deputy prime ministers. Prime Minister Desalegn told Parliament last week that his administration has formed three clusters under the supervision of the newly appointed trio of deputy prime ministers, Demeke Mekonnen, Muktar Kedir, and Debrestion Gebremichael, who are in charge of social affairs; finance and economy; and good governance and reform clusters respectively. The idea of a cluster is in itself a constitutional absurdity. It’s all the more worrying because the Prime Minister himself partakes of the division of the executive powers into clusters. Even Bereket Simon scoffed two months ago at rumors about the possibility of appointing three deputy prime ministers.
However, some people are quick to recycle what they are fed by the state-controlled media. They tell you that these are only “coordinators” of sorts with the rank of deputy prime minister for reasons best known to themselves. Others tell you that the Prime Minister can legitimately create ministerial offices or posts acting through the Council of Ministers. A typically absurd reasoning was offered by Sisay Mengistie, a professor of law at Addis Ababa University School of Law, who contends that, “The PM using Council of Ministers can create offices (See Art. 77(2)) and to me still there is no more than one Deputy Prime Minister rather with rank of Deputy Prime Minister.”
Dr. Assefa Fiseha, who is the one of Ethiopia’s leading constitutional law scholars and Professor of Law and Director of the Institute of Federalism and Legal Studies at Ethiopian Civil Service University, posted recently on Facebook that “the idea of having two more deputies is not bad, in constitutional terms as well as in political science we call it power sharing, if genuine it works as there will be more representatives from different groups which is crucial in multiethnic context. The shifting of Dr Tewodros to foreign affairs is strange, as he was very productive in the sector.” I concur with Dr. Fiseha that it’s not a bad idea in itself, but my question to him was “is it constitutional? Could this appointment have been done without amending the constitution?”
Dr. Fiseha hopes, against hope, that it is an issue to easily resolve. He replied to my Facebook comment with the following: “it depends on which school of interpretation one adopts in settling the issue. It may have problems with the letter of the constitution (Arts 75/76) but if you adopt a purposive or teleological view you can get away easily. [W]hat is interesting is what we thought to be so clear is not any more clear. Some colleagues were arguing some years back that it is possible to apply the constitution without interpreting, here they will surely run into trouble. There is no clear constitutional clause, whether we like it or not.”
Nevertheless, I have no doubt that Dr. Fiseha would agree with me that the first rule of interpretation requires where the words are plain and clear, and the sense distinct and perfect arising on them, there is generally no necessity to have recourse to other means of interpretation. It is only when there is some ambiguity or doubt arising from a particular clause that recourse has to be made to interpretation, whichever school of interpretation you subscribe to. There may be obscurity as to the meaning, or a doubtful character of the phraseology, in relation to other clauses in the same law, or from an incongruity between the words and the apparent intention derived from the whole structure of the law, or its avowed object. In all such cases interpretation becomes indispensable. Now my question is why do we need to interpret a constitutional clause that is in itself crystal-clear?
Dr. Fiseha replied, “There you are Alemayehu. That was exactly what I was talking about. That very rule you mention as such is least relevant when it comes to constitutions. Read any standard and authoritative constitutional text. No constitutional clause is clear, my reading so far tells me that. In one way or another you will be forced to interpret. For any specific case, you will not get an answer or you will have many possible answers unless one refers to clauses such as terms of the president (which is 6 years or 12 years). You think the issue under discussion is clear? One can argue strongly that the grand purpose of the constitution is to share power among various groups (federalism with its emphasis on shared rule). The ideal power to share is the executive which has so far been dominated by the PM. For one reason or another the current PM shares this very power and does not see much problem in doing that. As I said earlier, it may apparently seem to have problems with the wording of Arts 75/76 but not necessarily with the spirit of the constitution. Another point is to understand the constitution as a whole without focusing only one or two articles.
More problematic issue for me is whether you can have a deputy PM who is not a member of parliament and whether one can do that without first having a law on the organization of the executive. The existing law does not have places for more than one deputy.”
In my reply to his comment, I wrote, “Surely, the overarching aim and purpose of a federal constitution is to ensure self-rule and shared-rule, and, more importantly, that of an ethnic federalist constitution is to guarantee ethnic equity and fairness in institutions of governance at all levels. However, it seems to me you are over stretching the originalist position to cover instances of manifestly unnecessary ministerial appointments such as the present ones, which were made on the pretext of maintaining ethnic balance. With all due respect to your scholarship, I think you are reading too much into it.” Besides, it doesn’t seem that the Prime Minister made the appointments in anticipation of the interpretation offered by Dr. Fiseha.
Dr. Fiseha replied that “too much or not, I am implying that there is no one answer to most constitutional issues and I mentioned only one, you mentioned the literal interpretation and I can add some five of them that will bring five different answers on the same matter. By the way, EPRDF never argued on the basis of ‘ethnic balance’ whatever reason forced the party to reach this stage, ethnic balance is simply our understanding of the matter. I just heard the PM’s interview in search of an explanation, the only hint he gave was to make government more effective by dividing into many implying that I cannot do whatever the former PM did, he did not mention ethnic balance, indeed Bereket rejected that idea expressly some weeks back. We do not know yet the motive.”
Dr Fiseha is correct in saying that the EPRDF never argued on the basis of ethnic balance nor did it admit that the two appointees are deputy prime ministers. The state-controlled media reported that two more high-ranking EPRDF officials have been appointed with the rank of Deputy Prime Ministers. Although, of all Ethiopian Government officials, it was only Ambassador Dina Muftu who seemed to have indirectly admitted in an interview with the Voice of America that “the constitution is silent on the number of deputy PMs.” But clearly the appointees are deputies. The notion of ethnic balance as justification for the latest appointments was first suggested by Jason Mosley, an associate fellow of the Africa program at the London-based Chatham House. Mosley characterized the new appointments as a balancing act prompted by EPRDF’s ethnic composition, as opposed to an imbalancing act, and of EPRDF as in an “awkward phase”, as opposed to in a balanced phase, which is a contradiction in terms, an oxymoron of sorts. Mosley says, “They’ve now got all four parties represented within the prime minister and deputy prime minister slots…[while this puts the EPRDF in] an ‘awkward phase’ as they attempt to ‘rule by committee’”, as opposed to rule by a single guerrilla-fighter-turned-strongman. In response to Mosley, Sebastyanos Beyene posted on his Facebook page, “How on earth the fellow from Chatham House concludes ‘a balance of ethnic power’ is beyond me. But I seriously doubt this reshuffle is an indication of a ‘power-balance’ in a meaningful form. St. James Square (Chatham House) seems to be filled by parvenus on Ethiopia or by unambiguously deceptive ‘experts’ of our Country.”
I do object to Dr. Fiseha’s interpretivist approach, because that kind of activist approach, as opposed to restrained approach, that he is championing was not intended to apply to situations like this, as it would certainly lead to absurdities and chaos. The historical development of the interpretivist approach is fundamentally different. Arguments marshaled in support of interpretivist activism include such arguments as the neccessity to correct injustices and promote needed social change; or that it is an acceptable last resort when the executive and legislative branches refuse to act; or that it is necessary to actively interpret the constitution as new conditions arise. Not a single condition exists in Ethiopia today that justifies this kind of activist interpretation. For instance, in Dred Scott v. Sandford (1857), the Supreme Court of the United States (SCOTUS) applied restraint in deciding that slaves were not protected by the Constitution and could never become citizens. Another example includes Plessy v. Ferguson (1896) in which SCOTUS upheld the constitutionality of “separate but equal,” thus perpetuating segregation. So what the activists advocate against is the such application of the plain meaning rule to constitutional interpretations concerning rights, not to questions like how many Presidents or Vice Presidents of the United States can citizens elect. That would, no doubt, lead to absurdities and chaos.
As I’ve tried to demonstrate, the latest move by the Prime Minister fails the test of constitutionality. To reiterate, simply appointing more deputy prime ministers than is required by the constitution is unconstitutional.
Although the latest appointment came as a surprise to most observers of Ethiopian politics, I for one wasn’t surprised in light of the recent promotions of thirty-seven army generals following the death of the Prime Minister Meles Zenawi, even before his successor was confirmed. For me, that was a quiet coup d’état. The question of succession was decided then and there by the body that endorsed the promotions, even where there was no one to assume the constitutional responsibility of the Commander-in-Chief. That was by far the most decisive appointment ever made during the period of succession. The addition of thirty-seven generals, most of who are from the TPLF, to the top military leadership radically transforms the nature of the defense forces. The party within the EPRDF coalition that can overwhelm the chain of command of the defense forces decides Ethiopia’s fate.
Also recall that the promotions were sort of rushed, given that a Prime Minister, who, ex officio is also the commander-in-chief of the defense forces, had not yet been sworn in. In addition, it was still not clear whether Hailemariam Desalegn was in fact the acting Prime Minister, because he was still the Deputy Prime Minister and Foreign Minister. He could not be all three at once. You can say there is collective leadership in Ethiopia, but that is not the sort of leadership we want to see, which is a relic of communism. Moreover, the process in which the promotions were made lacked transparency. As you know, accountability and transparency are two much talked about principles of governance in Ethiopia, which, however, are currently missing in action.
It is common knowledge that the EPRDF launched a program of generational change (aka Metekakat) within the ranks of its leadership in 2009, which I believe was pioneered by none other than Tefera Walwa, and parroted by the late Meles Zenawi. That program extended its reach to the Ethiopian National Defense Forces (ENDF) in 2010, with a view to replacing 561 high-ranking officers. Leaving the current promotions aside, thirteen generals and 303 colonels have been replaced up to 2011. This program also aimed at promoting the equitable representation of the country’s diverse ethnic groups in the ENDF’s top command, which was emphasized by Defense Minister Siraj Fegessa, who said that an affirmative action program would be put in place to enhance the ethnic composition of the army.
How is changing the ethnic composition of the top leadership of the defense forces at such a critical stage as in during the extended absence of a Prime Minister, in the history of a country where ethnicity is politically not only salient but decisive, different from a coup? It is an outright reversal of the “metekakat” program, if not a coup. This action, coupled with the current appointments of Debretsion Gebremichael, Ph.D., and Tewodros Adhanom, Ph.D., both from the TPLF, to the posts of Deputy Prime Minister and Foreign Minister respectively, sealed the succession chapter in favor of the TPLF at least until 2015.
I have argued elsewhere on the unconstitutionality of the Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation No. 691/2010, the reason being that legislative powers cannot be legitimately delegated to the executive. Article 34 of Proclamation No. 691/2010 invests the Council of Ministers with the power to reorganize the Federal Government Executive Organs and stipulates that “[t]he Council of Ministers is hereby empowered, where it finds it necessary, to reorganize the federal government executive organs by issuing regulations for the closure, merger or division of an existing executive organ or for change of its accountability or mandates or for the establishment of a new one.” A crucial question in connection with this is how can a regulation issued by the Council of Ministers prevail over a legislation duly enacted by the Parliament? How can the Council of Ministers “reorganize the federal government executive organs by issuing regulations for the closure, merger or division of an existing executive organ or for change of its accountability or mandates or for the establishment of a new on?” This is more than baffling for the constitutional law scholar and remains to be a constitutional absurdity until corrected.