Dissenting a constitution that makes the prime minister a monster and emperor
By Berhanu G. Balcha
June 22, 2007
What is an “outrage” against a sham constitution and outrageous rule?
Meles Zenawi was elected from a district from which he has never lived for the last 30 years. It is clear that he has no legitimacy even from his own electoral district. However, the 1995 constitution in Ethiopia has made him a vicious emperor whose brutality has been ubiquitous, not only throughout the nation, but also expanding to the neighbouring countries. The constitution was drafted and ratified by a total control of Meles zenawi’s party. Thus, it makes the power of the prime minister unrestrained or unchecked by the executive, legislative, judiciary and other federal or regional institutions in Ethiopia.
According to the 1995 constitution, the power of the prime minister is unprecedented: he controls the armed force; the executive is totally accountable to him; he is a head of a party that has a majority in the legislative (90 percent majority from 1991 to 2005 and two-third majority since May 2005). The constitution (Article 74) gives him a full power to select and recommend the appointment of commissioners, the president and vice-president of the federal supreme court and the auditor general. He has a significant power in influencing the judiciary and other important institutions that should be vital for checks and balances in the federal systems. Moreover, since the president and vice-president of the federal supreme court are serving as a president and vice-president respectively in the council of constitutional inquiry that have powers to investigate constitutional disputes. Thus, the prime minister has also a greater influence to affect the functions of constitutional inquiry. The president of the supreme court serves also as a chairperson of the national electoral commission.
The court system is structured in a very susceptible manner to the interference of the executive branch as the prime minister and his majority party in the parliament is responsible for the appointments of judges. All the powers allocated to the parliament are indirectly allocated to the prime minister, as the prime minister is the head of the majority party in the parliament. Thus, the parliament (the legislative) is simply a rubber-stump to the executive body. Constitutionally, a majority party in the parliament always belongs to the prime minister and therefore it is expected to endorse the prime minister’s selections of key public offices.
Although the constitution declares that judges should exercise their functions in full independence and should be directed solely by the law, the Judicial Administration Council, which has a power to remove judges due to violation of disciplinary rules or on grounds of gross incompetence or inefficiency, is accountable to the ruling party as its decision to remove a judge should be approved by a majority vote in the parliament that is dominated by the ruling party (Article 79).
The prime minister also has a tremendous influence in the operation of the Judicial Administration Council, because the Council is operating within the federal government’s executive structure. The Council has responsibilities to assess and determine code of professional conduct and discipline as well as transfer of judges of any court. Besides, concerning appointment of other federal judges, the federal Judicial Administrative Council has a responsibility to select candidates that should be acceptable to the prime minister (Article 81). Hence, cumulatively, all key judicial powers in the country are at the mercy of the prime minister.
More critically, the Ethiopian federal project suffers from the absence of an independent constitutional interpretation procedure. The constitution states that the house of federation (HF) has the power to interpret the Constitution (Article 62, 1), but the HF is a political institution as its members are elected or appointed from elected party members, besides its members are strongly connected to and influenced by the winner party in the government. As a result, the power to interpret the constitution can certainly fall down into the ruling party.
In addition, the Council of Constitutional Inquiry that was given powers to investigate constitutional disputes would be organized by the HF and also expected to submit its recommendations to the HF. Making the matter worse the president and the vice-president of the federal supreme court would become a president and vice-president of the Council respectively. As argued above, the prime minister has a tremendous power in the appointment of the presidents of the federal supreme court, thus he can get a direct influence in the operation of the Council of Constitutional Inquiry that could undermine its independence and impartiality.
The constitution does not put limit on the term of the prime minister, who has much power, but a term limit was placed on the post of a president, who has only a ceremonial power (Article 70). This is a very intriguing and deceptive constitutionally decree; in principle a term limit should be made on the tenure of the executive in order to discourage a tendency of autocracy and power abuse by the power holder due to a longer tenure in power. But in the Ethiopia case the tenure of the executive (the great power holder) has been made infinite whereas the term limit was made on the non-executive, non-powerful and very ceremonial president. It should have been the other way round, if the purpose is it to limit abuse of power by the power holder. That it the essence of introducing term limit in political office.
Although democratic and human rights are unconditionally promised in the constitution, there is little tolerance for alternative views and dissents. The constitution declares that courts shall be independent and judges shall ‘exercise their function in full independence’ and protected from unduly removal, but there are abundant cases that judges were removed for political reasons. It is one thing to put provisions in the constitution and another to genuinely pursue them. The constitutional provisions are simply an attempt to secure political hegemony of the TPLF through a veneer of democracy. As Harbeson (1998) indicates that since 1991 Ethiopia has acquired virtually all the forms of democracy but little of its substance.
The constitutional defect was inherited from the defect of the transitional charter which was exclusively authored by TPLF/EPRDF without a genuine and free participation of the Ethiopian people. It was produced in greatly flaw process, but became a code of conduct for drafting of the constitution. The 1995 constitution was ratified by the constitutional assembly, which was composed of undemocratically selected individuals, in which TPLF/EPRDF controlled almost 95 % of the members. The oppositions and all major civil society organisations boycotted the election. The overall process, starting from assigning the constitutional commission to electing the constitutional assembly and ratifying the constitution was absolutely dominated by the ruling party.
Thus, the 1995 constitution in Ethiopia has become the document of the ruling party and its affiliated associations. It was an imposed ‘federal covenant’ on the Ethiopian people without their genuine participation and consent. It only reflects the ideology and wishes of the TPLF-led EPRDF. It was implemented in a manner completely dominated by a power at the center in collaboration with the co-opted elites at central, regional as well as local levels. The 1995 constitution shows either mere intentions or a cover for deception. It is purely a façade that masked an authoritarian regime. It is simply a caricature for misinformation and perversion.
To conclude, I will cite from John Young, a close examiner of Ethiopian politics and, perhaps, initially sympathetic to the TPLF, who states: ‘Constitutional making under the EPRDF has little in common with the bargaining, trade-offs, and compromises that usually typify such process; rather it reflects the weakness of the country’s democratic institutions, the political objectives of the governing party, and its position of dominance with a state where serious opposition had been crushed or marginalized (Young 1998).
So, what is a crime in opposing a constitution that makes a prime minister a monster and his rule a brutal autocracy?