गृहपृष्ठसंविधानसंसदसमाजस्तम्भसुरक्षासंसारसंवादसमिक्षासर्वोच्च अदालतसम्पादकीयEnglish

Constitutionality of the four options in 2020 Ethiopian election

न्यायपालिका
२०७७-०१-२४

Commentary on 2020 Ethiopian election for nyayapalika.com

1. Introduction: In this writing I will try to assess and trigger question on constitutionality of the four options presented by FDRE government for 2020 Ethiopian election but not about to undermine their views and stands. Rather than, expressing my view on the alternatives presented. In the following writing I will pin point the unconstitutionality of the four options presented by government from letter of 1995 (FDRE) Ethiopian constitution .
Options presented
1. Dissolution of the parliament
2. Declaring state of emergency
3. Interpreting constitution
4. Amendment of constitution                                                              
A. Dissolution of the parliament
Art 60(1) of FDRE constitution empowers the prime minister to demand both early and late dissolution of the Parliament before the expiry of the term.Dissolution of parliament may occur due to multiple reasons, Practices of many countries following parliamentarian system shows that, the following are illustrative reasons for dissolution of parliament mutatis- mutandis for Ethiopia.
a. political crisis and dissolution of the parliament is the last resort to cease the crisis.
b. when cabinets elected by people drops confidentiality.
C. Post-election coalition negotiation.
d. Breaking inter constitutional deadlock (if the laws or initiatives provided by government were to be rejected by parliament.
e. As a way of testing public opinion on major issue.
f. Choosing the timing of election. However, all these scenarios hold true only within term of the parliament which is five years in our country context. Thus, option 1 is unconstitutional.
B. Declaring State of emergency
The 1995 FDRE Constitution under art 93(40)(b) stipulates that ‘The Council of Ministers shall have the power to suspend such political and democratic rights contained in this Constitution to the extent necessary to avert the conditions that required the declaration of a state of emergency”.
As it can be inferred from the reading of the the provision, council of ministers has a power to suspend certain political and democratic rights. Certain rights are non-derogable under our constitution such as Art.1,18,25 and 39(1)(2). Such rights are commonly known to be non-peremptory norms. Along similar lines, it is advisable to know what are those political and democratic rights suspended during emergency declaration? Does it include the right to vote?
ICCPR treaty which Ethiopia is a party stipulate word by word that, political rights include ; freedom of expression, freedom of association and assembly, the right to take part in the government of one’s country, and the right to vote and stand for election at genuine periodic elections held by secret ballot . Therefore , the right to vote falls under the ambit of political rights, meaning the executive organ has power to postpone the upcoming election. But what will be the fate of government when corona ceases until election will be held? Meaning who will overrule campaign activities , endorses for political officials , creating voters awareness, enacts laws, make sure public authority is not abused? Because, there is period of time between last day of emergency declaration and commencement of election. Since, the current government power comes in to UN end when state of emergency cease.
C. Interpretation of constitution.
Interpretation is a process of giving meaning to the phraseology of the law it is reducing the law in to reality’’ interpretation is the art or process of discovering and expounding the intended signification of the language used’’ (Garner; 2004:837). The power to interpret the Constitution in our country is vested on HoF which has both political and legal power.
The problem is, what it to meant by constitutional dispute under art 84 of FDRE constitution. Is it total silence of the law? , is it the power to declare federal or state law as unconstitutional? (invalidating legislative act due to unconstitutionality) Or a dispute involves constitutionally recognized rights. in fact; the later requires only resolving such a may not require more than expounding the provisions of the Constitution.
Although, the Constitution has been less clear on the procedures to be employed in the process of adjudicating constitutional issues, the ‘law to re-enact for the strengthening and specifying the power of Constitutional Inquiry of the FDRE, proclamation No. 798/2013 has attempted to clarify some of the ambiguities. An area of procedure of constitutional interpretation in Ethiopia includes the concrete review (in court proceeding) and individual complaints (out of court proceeding).
FDRE Constitution fails to define the term ‘interested party’ and it becomes a matter of controversy to understand its meaning constitutionally. Some scholar states that ‘where an issue of constitutional interpretation or disputes arises in the course of litigation in a court, an interested party may mean a plaintiff or a defendant.’ Because, it is a plaintiff or a defendant whose interest is inevitably affected by the outcome of a case.
In spite of the controversy among the scholars, the term “interested party” is used to denote those whose interest is at stake directly or in directly as a result of the operation of the law or the legislation enacted either by the federal or state legislature (Ibrahim Idris Ethiopian law journal 2002) in the case at hand prosperity party might be.
In the issue at hand, there is no clear law which stipulates about extending the term of parliament due to unforeseen circumstances. In my view, such issues do not fall under the ambit of constitutional dispute unless, the house of federation blindly, amends it under guise of interpretation. which against art 104 and 105 of constitution respectively.
Contrary to the above assertion one writer asserted that, ‘’it is commonly assumed that the interpretive intention of the constitution would be construed in accordance with what future interpreters could gather of the framers own purposes, expectation and intention” (wellington;2005:50). Prosperity party may use functional interpretation which backs the assertion of the above writer, which is interpreting constitution considering the whole and special nature of the document and for the purpose it is enacted. In my view interpretation of constitution requires an in depth knowledge of interpreting political documents.
D. Amendment of constitution
Amendment of constitution is alteration of provisions in the existing FDRE constitution. As it known 1995 FDRE constitution is rigid in terms of amendment (the ladders of amendment passes via stringent procedures) in fact this is to show sovereignty of nations and nationalities of the country. to prohibiting arbitrary amendment of nations and nationalities will or covenant.
According to Art 54(1) “Members of the House of Peoples’ Representatives shall be elected by the People for a term of five years on the basis of universal suffrage and by direct, free and fair elections held by secret ballot’’. Therefore, in order to amend this article, since it falls under chapter six of the constitution, art 105(2) stipulate that, “When the House of Peoples’ Representatives and the House of the Federation, in a joint session, approve a proposed amendment by a two-thirds majority vote; and (b) When two-thirds of the Councils of the member States of the Federation approve the proposed amendment by majority votes”. This easy option relatively for Prosperity party to gain the will of both houses and regions.
But amending provision of constitution requires public discussion under art 105. However, amidst COVID-19 outbreak it is impossible; in which WHO aggressively instructs social distancing. Plus, the declared emergency due to corona prohibits assembly. This might be the bottle neck for amendment, but the better and functional option is amending constitution.
(This article is written by Jara Samuel for society for international law and Public policy and published in nyayapalika.com with consent of Organization. You can reach author : samueljara270@yahoo.com and SILPP : silpp.nepal@gmail.com .)
मुख्य शब्द:
Constitutionality of the Four options in 2020 Ethiopian election
Ethiopian constitution
Jara samuel
nyapalika
nyayapalika.com
society for international law and Public policy
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