Source: https://www.satenaw.com
Understanding, Interpreting and Applying the Ethiopian Constitution During the Covid-19 Pandemic (Part I)
May 26, 2020
Source: https://www.satenaw.com
Alemayehu G. Mariam
Author’s Note: On May 18, 2020, I had an opportunity to make a virtual appearance (in Amharic, begins at minute 36:17- 1:22) before the Ethiopian Constitutional Inquiry Council and share my views on issues related to the postponement of the August 2020 national and regional elections because of the Covid-19 crisis. My purpose in appearing before the Council was to share my knowledge, insights and experience in American constitutional law in addressing the issues before the Council. I am not a stranger to the Ethiopian Constitution. I have written numerous commentaries on it over the past decade and half.
To have an informed conversation about contemporary constitutional issues, it is important for all Ethiopians, especially the so-called elites dabbling and meddling in politics, to have basic familiarity with our constitutional history and the great historical constitutions of the world. With due respect to all African countries, I wish to emphasize that Ethiopia is not a creation of European colonial domination though I am first to acknowledge their machinations and designs to subjugate Ethiopia. Ethiopians have a rich millennia-old civilization and a strong tradition of rule of law and centuries-old system of laws, institutions and norms.
The belief in the supremacy and primacy of the rule of law is so deep in Ethiopia, a proverb says the divine power of the law could stop not only humans but also a flooding river: “Be hig amlak sibal enkwan sew weraj wonz yiqomal.” A critical understanding of our constitutional history will help us gain insight into our current problems, avoid repeating mistakes and chart a clear course for the future.
In successive short commentaries to appear in the coming days, I shall expand on my testimony and answers before the Council and expound on constitutional interpretation. In Part I, I offer an overview based on primary constitutional sources. I invite my readers to examine them to broaden their understanding.
Part I — Understanding constitutionalism and constitutional law
Most people who talk about constitutions in America or Ethiopia have barely read their respective constitutions. Studies show, “Americans know literally nothing about the Constitution.” I suspect that may be equally true for Ethiopians. It is not only the average citizens but also most of the elites who suffer from constitutional literacy or a deficit of constitutional knowledge and understanding in both countries. As a result, extremist elements and the willfully ignorant in America and Ethiopia are often heard blathering uninformed and reckless public pronouncements which subvert constitutional governance into a game of fully loaded Russian roulette.
Generically, a constitution is a legal document that sets out the basic principles and organization of government, specifies the scope and limitations of governmental powers and provides for a scheme of civil liberties. Beyond these basic attributes, there are many different types of constitutions: written and unwritten, republican and monarchical, presidential and parliamentary, federal and unitary, liberal-democratic and socialist and so on. Some constitutions are written in “majestic generalities” and others like ordinary legislation with minute details. Some like the U.S. constitution are short (4,500 words) and others like India’s have exceedingly long (145 thousand words). Some constitutions are interpreted by courts (e.g. judicial review in the U.S.) and a legislative body (e.g. Ethiopia) in others. Some constitutions are driven by ideals of liberty and equality and others by narrow ideology. Most constitutions are secular but there are some theocratic constitutions founded on religious precepts.
In most constitutions, the phrase “supreme law of the land” is used to signify that the constitution is the foundation and ultimate source of legal authority in the society. All government legislation, regulations and rules must conform to the constitution and conflicting laws are deemed invalid. All institutions and leaders are sworn to uphold and defend the constitution. Constitutions are drafted to endure for generations and reflect the consensus of diverse and competing interests in society. They are amended only by extraordinary means because they anchor the foundations of society.
Understanding the constitution of a given society goes beyond textual or semantic analysis of the words. It requires a broader understanding of the society’s history, political struggles and challenges, the diversity of views and perspectives as well as the shared expectations and aspirations of the people.
Constitutional origins
Most constitutions of the world share similar values, aspirations and even substantive textual language. That is because constitution drafting is an eclectic process and draws from diverse historical and contemporary sources.
Most modern constitutions could be traced to the legal systems of classical antiquity. The Constitution of the Roman Republic consisted of informal and unwritten ideas about separation of powers, checks and balances, vetoes, term limits, impeachments. That constitution created legislative chambers and determined rights of citizenship. The Athenian Constitution (Areopagite constitution) consisting of two parts, described the constitutional and legal codes on citizenship, magistrates, and the courts, among other things. Many modern constitutions trace their roots to classical antiquity and modern Western constitutions after the Treaty of Westphalia in 1648 establishing the modern state system.
The Magna Carta (Great Charter) (1215) is a unique constitutional document unlike any other preceding it. It was drafted by the ruled and imposed on the rulers. It was a bold effort to subjugate rulers to the rule of law and aimed to create a binding political contract between subjects and kings. (See my commentary “A Magna Carta for Ethiopia”.) The unwritten Manden Charter (1235) of the great African kingdom of Mali is touted by some as being the first constitutional document to recognize human rights. It aims to promote social peace in diversity, the inviolability of the human being, education, the integrity of the motherland, food security, the abolition of slavery, and freedom of expression and trade. The English “Bill of Rights” (1689), the French “Declaration of the Rights of Man and of the Citizen” (1789) and the U.S. Constitution of 1787 with its amendments are inspirational sources for the majority of world constitutions.
Ethiopia’s constitutional history
Most African countries, which gained their independence after 1960, did not have constitutional history before colonialism. Many post-independence African constitutions were drafted with the heavy influence of their former colonial masters. Other African countries which considered themselves “revolutionary” opted to follow the constitutional path of the communist-bloc countries.
Uniquely, Ethiopia has a significant constitutional history dating back to the Middle Ages. The Fetha Nagast (Law of the Kings), compiled around 1240 AD, was Ethiopia’s constitution until a modern one was drafted in 1931. The first part of the Fetha Negast deals with ecclesiastical matters and church hierarchy. The second part covers a variety of secular matters including liberty, slavery, partnership, lease, property rights and other similar things.
The 1931 Constitution replaced the Fetha Negast and represents the first modern constitution of Ethiopia. That constitution deals with succession to the throne, prerogatives of the emperor, rights recognized by the emperor, deliberative chambers of the empire, jurisdiction of courts and functions of ministers.
The 1955 Revised Constitution of Ethiopia consisting of 131 articles was a radical departure from previous conceptions of government and royal authority. It incorporated ideas about separation of powers between three branches of government. However, the king still retained ultimate power including appointment of ministers, senators and judges. Interestingly, Chapter III of that Constitution (“Rights and Duties of the People) could be described as a virtual carbon copy of the American Bill of Rights and other amendments to the U.S. Constitution:
1987 Constitution of Ethiopia, drafted by the military Derg socialist regime, consisted of 119 articles. It created a “National Shengo” (assembly) as the highest organ of state power with members were elected to five-year terms. The president elected by the National Shengo along with ministers appointed by same exercised executive powers. That constitution mimicked constitutions of the communist bloc countries of the time with the ruling party exercising monopoly power in the name of the working people and peasanty.
The current 1995 Constitution consisting of 106 articles provides for a parliamentary federal government of nine ethnically-based regions. It creates a dual legislative body of the House of Peoples’ Representatives and the House of Federation and a ceremonial presidency. This constitution has some interesting provisions. Article 13 specifies that these rights and freedoms will be interpreted according to the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and other international instruments adopted by Ethiopia. The document further guarantees that all Ethiopian languages will enjoy equal state recognition, although Amharic is specified as the working language of the federal government. Under Chapter III “HUMAN RIGHTS” are listed the following liberties which virtually replicate the American Bill of Rights.
What a constitution is not
In the current discussion and debate over the constitutional authority to postpone the August 2020 national and regional election because of COVID-19, I am amused by the lack of substantive knowledge, shallow understanding of constitutional law and dogmatism of those who proclaim, “After September 30, 2020, there is no government in Ethiopia. It is a free for all. Anyone can establish their own governments.”
The choice is not between a duly established constitutional order and the anarchy of the mob presided over by those thirsty for power. The choice is between a constitutional government that can protect liberty the in terrorem rule of the mob. A wise American jurist writing about American civil liberties warned against converting the constitution into a suicide pact of total anarchy.
Part II- Constitutional interpretation…
May 30, 2020
Interpreting and Applying the Ethiopian Constitution During the Covid-19 Pandemic (Part II – Constitutional Interpretation)
By Alemayehu G. <ariam
Interpreting and Applying the Ethiopian Constitution During the Covid-19 Pandemic (Part II – (Constitutional Interpretation)
A strict observance of the written law is doubtless one of the high duties of a good citizen, but it is not the highest. The laws of necessity, of self-preservation, of saving our country when in danger, are of higher obligation. To lose our country by a scrupulous adherence to the written law, would be to lose the law itself, with life, liberty, property and all those who are enjoying them with us; thus absurdly sacrificing the ends to the means. — Third U.S. President Thomas Jefferson, Letter, 1810.
Author’s Note: On May 18, 2020, I had an opportunity to make a virtual appearance (in Amharic, begins at minute 36:17- 1:22) before the Ethiopian Constitutional Inquiry Council and share my views on issues related to the postponement of the August 2020 national and regional elections because of the Covid-19 crisis. In Part I of my commentary, I sought to amplify on my testimony on before the Council by providing my readers a brief discussion on constitutionalism and Ethiopia’s constitutional history. In Part II below, I aim to discuss approaches and methods to constitutional interpretation from the viewpoint of American constitutional jurisprudence and legal scholarship. I hope those interpreting the Ethiopian Constitution will find the discussion and references below useful and informative.
Constitutional interpretation
Unlike the United States, Ethiopia does not have a long legal tradition of constitutional interpretation informed by legal precedents, doctrines and standards. Of course, the U.S. Constitution is over 230 years old and Ethiopia’s barely 30. Although the U.S. Constitution is silent on which branch of national government is responsible for constitutional interpretation, and Ethiopia’s very explicitly so (Art. 84), the U.S. Supreme Court in 1803 decided that the sole power of judicial review and authoritative interpret and apply the Constitution. Undoubtedly, that decision is singularly responsible for the constitutional viability of the U.S. government today.
The U.S. Constitution has 7 articles and contains 7,591 including the 27 amendments. The Constitution’s “phrasing is broad and the limitations of its provisions are not clearly marked. Its majestic generalities and ennobling pronouncements are both luminous and obscure. This ambiguity of course calls forth interpretation, the interaction of reader and text…” Simply stated, the U.S. government has been operating for over 230 years guided by less than 7,600 words. These words continue to guide and operate the U.S. Government through an ongoing process of judicial interpretation and re-interpretation.
The 1995 Ethiopian Constitution has 106 articles and contains over 13 thousand words. It covers a wide range of topics. Unlike the U.S. Constitution, the Ethiopian Constitution clearly delegates the ultimate power of constitutional interpretation to the House of Federation (HoF) (see Articles 62(1); 83(1); 84(1)) with investigative powers granted to Council of Constitutional Inquiry. Over the past decades, the HoF has been engaged in “investigating questions of constitutional interpretation from various individuals and sections of the society.”
Unlike the HoF, the U.S. Supreme Court has decided thousands of constitutional cases which serve as controlling authority in the interpretation and application of constitutional language in criminal, civil and administrative cases. The U.S. Supreme Court has developed constitutional tests, standards, and doctrines to streamline constitutional interpretation. For instance, in reviewing the constitutionality of ordinary legislation, the Court uses the “rational basis” test, which means a law will be upheld as constitutional so long as it is rationally related to a legitimate government interest. The “strict scrutiny” test, the most stringent test of constitutionality, is applied in cases involving fundamental rights. For instance, a law the infringes on free speech will be declared unconstitutional unless the government can show a compelling state interest for enacting the law and demonstrates that it is narrowly tailored to address the underlying problems and used the least restrictive means to achieve its purpose.
Perhaps the most important aspect of the U.S. constitution is the fact that nearly every aspect of it is open to interpretation. For instance, under Article I, section 8, the U.S. Congress is given all sorts of powers including the power to “regulate commerce”, “tax” and “borrow”, “declare war” etc. But the Constitution, beyond mentioning these powers offers no indication of their meaning or scope of application. Could Congress use the commerce clause to effectively outlaw discrimination in public accommodations such as hotels? Indeed, by interpreting the commerce clause the Court ruled Congress could regulate private discrimination if it affects interstate commerce.
Beneficial uses of American constitutional interpretive approaches in advancing Ethiopian constitutional law
Ethiopia has yet to developed a legal tradition of constitutional interpretation but can learn from the American legal and scholarly tradition of constitutional interpretation. Examining U.S. Supreme Court precedents, scholars have classified styles of constitutional interpretation based on historical periods. Such classification includes “Natural Law”, “Formalism”, “Holmesian and “Instrumentalism”.
In the long history of the U.S. Constitution, many interpretive approaches have been proposed. In general, it could be said there are five major approaches that have informed much of the interpretation of the U.S. Constitution.
The first is “textualism” which aims to ascertain the plain and objective meaning of a constitutional text. How did the drafters and the people who ratified the Constitution understood the words written in the constitution within the context of their particular social, political, and historical circumstances? The aim of textual constitutional interpretation is to give effect to the plain meaning of the written words, and if there is ambiguity, to resolve it in a manner that enhances the viability of the constitution.
Second, there are those who consider themselves “originalists” and argue that the best way to understand and interpret the constitution is by deciphering the original intentions of the drafters. They seek to reconstruct the original intended meanings of textual language by examining the texts of the debates in the Constitutional convention and the venerable Federalist Papers. They believe the task of interpreters, particularly judges, is to reconstruct the original meaning of the text of the constitution and give effect to it as the drafter would have done so were they alive today. A well-known proponent of originalism argued, constitutional interpretation should be based on “what the public of that time would have understood the words to mean.”
Third, the American legal system relies heavily on precedents (decisions of the U.S. Supreme Court and other federal courts) that have controlling authority in legal and constitutional interpretation. It is based on the principle of stare decisis which requires cases that raise similar questions should be decided in the same way. For instance, on May 28, 2020, President Donald Trump signed an executive order preventing “online censorship.” He claimed certain social media platforms are operating in a “fundamentally un-American and anti-democratic” manner. There are hundreds of Supreme Court decisions which invalidate Trump’s executive order to censor social media platforms in addition to explicit legislative protections provided to such platforms against the types of actions taken by Trump. Precedents are important in constitutional interpretation because they provide stability and consistency in the way the constitution is interpreted and applied.
Fourth, there is the approach of pragmatism, which is not overly concerned with words, phrases and intentions but takes into practical consideration the likely effect of constitutional outcomes. In this approach, the courts evaluate the consequences of their interpretations and decisions and the benefits and costs on the society. This approach is best exemplified by the observation of a famous Supreme Court justice: “The life of the law has not been logic; it has been experience.” Pragmatists look beyond the bare words and phrases to the purposes of the constitution and real life experiences to decide issues and to maximize benefits and minimize costs to society.
Fifth, the structuralist approach seeks interpretive meaning not from slicing and dicing words and phrases or divining the intentions of long dead constitutional drafters. Proponents of structuralism consider the entire text of the constitution rather than words, phrases, clauses and sections in isolation. If there are vague or ambiguous provisions, they seek to frame them within the larger constitutional context and produce a balanced interpretation. By reading particular aspects of the constitution in light of the whole document, they are more likely to resolve textual vagueness or ambiguities. Indeed, by examining constitutional issues within the totality of the constitutional text, structuralists can properly understand clauses, phrases and words and their implications more meaningfully and substantively.
American President Thomas Jefferson observed strict observance of the written law is one of the high duties of good citizenship, but not the highest. Indeed, protecting and preserving the interests of national survival and security in the face of an existential threat is of paramount importance. Ultimately, in times of danger and during a state of emergency, our highest moral and legal obligation is to SAVE OUR COUNTRY.
To lose sight of this most solemn obligation by quibbling unscrupulously over words and phrases would not only lead to losing the Constitution itself but also the lives of millions of innocent citizens who deserve better from those who claim to represent and speak for them.
Part III- How best to interpret the Ethiopia’s Constitution in light of issues raised by the COVID-19 pandemic.