Opinion

Ethiopia’s flawed constitution: why the law cannot protect you

andargachew
Written by Mohammed A

(OPride) Irish political philosopher Edmund Burke once remarked, “Bad laws are the worst form of tyranny. People crushed by law, have no hopes but from power.

If laws are their enemies, they will be enemies to laws; and those who have much to hope and nothing to lose will always be dangerous.” His eloquent observations from 1770s ring even more true in today’s Ethiopia than the monarchical European society of Burke’s era.

In Ethiopia, many of our fundamental freedoms are increasingly sacrificed at the altar of protecting state security using a spate of draconian laws. The Ethiopian regime’s law making machine seems to know no other overriding concern than national security, which essentially means any credible threat to its perpetual rule.

To the extent that they conflict with the ruling elite’s self-interested definition of state security, important social goals that promote human dignity, freedom, equality and prosperity do not matter.

In fact, the Tigrean People’s Liberation Front (TPLF) regime has perfected the art of governing through arbitrary and oppressive laws. Protection of the rule of law was  the mantra used for carrying out its  sinister political projects ranging from persecuting dissidents to narrowing down the political space through enactment of overly broad and vague legislations. As the regime upholds an instrumentalist version of the rule of law (which sees law as an instrument of politics), it can take sweeping measures in any areas of public life with one stroke. Since it fully controls the parliament, there is no restraint against the regime — institutional or normative — that stops it from formulating partisan legislations. By doing so, the regime destabilizes the legal order by changing laws abruptly and compelling the courts to be seen as mere managers that should meticulously apply the laws rather than being viewed as independent interpreters of laws. In the words of renowned legal philosopher Joseph Raz, it is such “promiscuous use of the rule of law” that enabled the TPLF’s ever-expanding art of subduing the public by using the legal system.

The phrase rule of law has become so sanctimonious that both dictators and democratic leaders now equally swear by it. But when tyrants (especially those in the mold of the TPLF) perniciously invoke a political ideal as elegant as the rule of law, it loses any substantive meaning.

A blatant breach of international law

TPLF’s latest successful enforcement of the rule of law is packaged as a heroic endeavor to bring home a fugitive to meet the full force of justice. The regime in Addis Ababa seems to justify the recent abduction in Yemen of Ethiopian opposition leader Andargachew Tsige. Tsige, an Ethiopian-born British citizen, was nabbed last month by Yemeni security forces while in transit at Sana’a airport and handed over to Ethiopian intelligence officials in what has been characterized as a blatant breach of international law. First, Tsige’s deportation to Ethiopia where authorities are known to routinely using torture as a method of interrogation violates Article 3.1 of the United Nations Convention Against Torture, which Yemen ratified in November 1991.

Second, the principle of non-refoulement is a fundamental norm from which derogation under any circumstance is not allowed. Third, the evidence on whether there is a ‘substantial ground’ to believe that Ethiopia does indeed torture its critics is simply overwhelming. Since the TPLF came to power in May 1991, each year, the U.S. State Department and other concerned international human rights groups had reported extensive incidents of torture in Ethiopia. Moreover, in 2010, the U.N. Committee Against Torture examined Ethiopia’s implementation of the Convention’s provisions. After a thorough review, in a January 2011 report, it concluded: “the Committee is deeply concerned about numerous, ongoing and consistent allegations concerning the routine use of torture by the police, prison officers and other members of the security forces, as well as the military, in particular against political dissidents and opposition party members, students, alleged terrorist suspects and alleged supporters of insurgent groups.” Ethiopia signed the Convention Against Torture in 1994.

Fourth, Yemeni authorities denial of British consular access to Tsige is a clear violation of Article 36 of the Vienna Convention on Consular Relations. One may also argue that Tsige’s rights under the 1948 Universal Declaration of Human Rights (UDHR) such as freedom from persecution and freedom from arbitrary arrest have also been violated. The rights packaged under UDHR have attained the status of customary international law meaning that they are binding on all states.

Finally, Tsige, who was convicted twice in absentia on charges of plotting to overthrow the government by Ethiopia’s kangaroo court, faces the death penalty. There is no doubt that regime will invoke its constitutional duty to enforce the law of the land, including its sweeping anti-terrorism legislation. But it will not be the first time the regime uses such justification. In the aftermath of the 2005 disputed election, more than 200 innocent citizens were massacred, several hundreds injured and thousands detained arbitrarily under the veil of protecting the “constitutional order” and the rule of law. The recent cold-blooded murder and indiscriminate shooting at Oromo student protesters opposing the unconstitutional expansion of Addis Ababa was also justified as a necessary measure to maintain law and order. Over the two decades, the TPLF-led government has wrongfully arrested and indicted prominent opposition leaders, activists, journalists and bloggers using the rule of law as a repressive weapon.

Ethiopia’s constitution: the mother of all ills  

Some government lawyers have attempted to delude the public by writing books with misleading titles. A good example is Fasil Nahum’s “Constitution for a Nation of Nations: The Ethiopian Prospect.” However, Ethiopia does not possess a constitution in the real sense of the term nor does it have a constitutional tradition. To be clear, Ethiopia’s current constitution is an elite pact among TPLF chief architects from Tigray and few willing subservient associates from the rest of the country.

Other regime loyalists, including foreign surrogates, have praised TPLF’s “bold” move “to face the fact of ethnic diversity” by going against the prevalent political practice in Africa, which gives preeminent place to political unity over plurality. For their expert testimony, their bosses expertly rewarded the discussants with political appointments such as advisors to the prime minister with ministerial portfolio and I hasten to add, with little exaggeration, government limo and infinite money supply.  

In the aforementioned Burkean sense, it is clear that the TPLF laws are at the heart of our systematic oppression and should be categorized as enemies of the Ethiopian public. But the mother of all these arbitrary laws is none other than the TPLF constitution itself. Those who have read through the impressive list of fundamental human rights, political, economic, social and cultural rights from collective right to improved living standard and sustainable development, every citizen’s right to participate in national development planning and policymaking, right to clean and healthy environment and etcetera may be shocked by my characterization of the constitution as the mother of all of Ethiopia’s ills.

However, I believe this is where TPLF has been a little brilliant. They catalogued as many rights as their bigwig lawyers could imagine into a sham constitutional document with two immediate purposes: a) to outwardly project an image of good students of democracy to their principal donors from London to Berlin and Washington; b) to arm themselves with soft technologies and vocabularies of mass-manipulation when the effectiveness of brute force as a crude technique of governance hits its upper limit. But, upon critical scrutiny, it becomes vividly clear that the TPLF’s constitution is a scheme of organized coercion built on contradictory principles. It is also structurally flawed due to certain “congenital infirmities”.  

First, the constitution lacks what leading American constitutional theorist Richard Fallon calls the three distinct criteria to measure any constitution: legal, sociological and moral legitimacy. The Ethiopian constitution lacks legal legitimacy because both the drafting and ratification processes were deeply flawed. There is a plethora of literature demonstrating how TPLF systematically excluded key stakeholders and dictated its will into the document as if this was a simple writing exercise for a founding memorandum of a fraternal association among close friends.The TPLF chaired the Transitional Government which facilitated the establishment of the constitutional commission, supervised and competed in the election of members of the constituent assembly, cleared the political environment through heavy-handed security crackdown on serious political forces vying to put their imprint on the constitution and filled the constitutional commission with its hand picked candidates.

Under such circumstances, the outcome could only be a genius elite pact at best. As such, calling the document a constitution would be a misnomer. In addition, while available empirical evidence is very thin, the lack of acceptance among most Ethiopians puts its sociological legitimacy very much in doubt. But until such evidence is brought to the fore, the fact remains that both for right and wrong reasons an overwhelming majority of Ethiopians do not trust the current constitution as a real constraining force with normative grounding and institutional efficacy that could safeguard their rights against excesses of the government.

Transgressions of municipal and international law

Besides, the practices of TPLF top brass in the last 19 years since the enactment of the constitution as the supreme law of the land sufficiently show that whenever the law contravened their political interest, the latter usually won. In other words, the TPLF leaders have not internalized the constitution enabling them to lord over others by bending the law at will while they seek to avoid submitting themselves to the candid application of the constitution.  Furthermore, a document that puts the fundamental of all rights the right to life at the whim of the executive branch by making it derogable whenever the Council of Ministers see fit (under the emergency decree art. 93) is morally outrageous. Under the International Covenant on Civil and Political Rights signed and accepted by Ethiopia in 1994 the right to life is non-derogable at all times, including during times of emergency where the sovereignty and security of the state is at stake. This is emblematic of the fact that TPLF is addicted to signing international human rights instruments but not to ever honor them.

Second, as Ethiopian constitutional theorist Minasse Haile has persuasively argued in two essays published in 1996 and 2005, the TPLF constitution fails to respect the normative principle of separation of powers, institutional checks and balances and above all strips the courts of the power to review executive and legislative acts and decisions. These structural flaws in the document cannot limit the government’s overreach. As such, when the executive branch abducts a citizen by transgressing both municipal and international law, Ethiopian courts cannot review the acts of the government and see to it whether the constitutionally embedded right of liberty or security of the person is violated or not. Ethiopian courts cannot hold officials in the incumbent government accountable; families of murdered Oromo students seek judicial review into the circumstances of their death in police custody.

The TPLF bigwigs might say one can take the case to the House of Federation if there is any constitutional issue of concern. But this is not true for several reasons: a) the House of Federation is neither a legislature nor a proper constitutional court: it’s an institution with “congenital infirmity” to seriously adjudicate constitutional questions; b) a House full of regime cadres cannot be taken as a serious constitutional mechanism with institutional independence and constitutional experts. So, the infirm design of the House of Federation does not allow for any meaningful constitutional interpretation. And its defects can only be remedied by dumping the law that created such an elusive institution  into the dustbin of history as a failed institutional experiment.

In the absence of normative and institutional framework to restrain the excesses of the government, the TPLF is free to enact whatever laws it wants without consulting those whose lives and interests it affects the most. All the repressive laws, whether you call them civil society law, anti-terrorism legislation, media law, etc. are the by-products of TPLF’s draconian constitution. It is the source of all the oppressive laws that keep the regime on power and continue to deepen the purse of our “democratic” overlords.

What can be done about it?

As Burke noted so long ago, “people crushed by law, have no hopes but from power” which in this context may mean that the credible alternative left is to collectively work toward exercising our natural right to abolish tyrannical government by rising up as one, strong and united political community. The TPLF’s “reign of terror”  seems to understand no other law than lex talionis  as repeated calls to the regime  leaders for opening up the political process has fallen on deaf-ears. As seen during the Arab Springs and so-called color revolutions in Eastern Europe, a coordinated cross sectional political bloc can coerce the minority TPLF regime to abdicate power. For instance, a nationwide labor strike, coupled with simultaneous demonstrations around the country and mass boycott of TPLF’s economic empire could make the country virtually ungovernable. The late Nelson Mandela once said of his country, “The time comes in the life of any nation when there remains only two choices – submit or fight. That time has now come to South Africa. We shall not submit and we have no choice but to hit back by all means in our power in defense of our people, our future, and our freedom.” Is that time coming to Ethiopia sooner than the regime wants to admit?

Thus, when the laws cannot protect you but become tools of a tyrannical rule, resistance by all means necessary so as to reverse this anomalous predicament is not only a natural right but also a necessary measure for survival and continuity as a stable political society.

*The writer, Urgessa Tura, is an exiled Ethiopian-Oromo lawyer and former staff  of the Supreme Court of Oromia.

Comments

comments

About the author

Mohammed A

Leave a Comment