July 6, 2022
Wondwossen Demissie Kassa (PhD)
Addis Ababa University
It has been a while since ending the Tigray conflict through negotiation has been discussed. Though the Federal Government had been dismissing rumours of negotiation with TPLF as unfounded, recently the Prime Minister publicly told the House of Peoples Representatives about his administration’s commitment to peaceful settlement of the conflict. Following that declaration, the Central and Executive Committees of the Prosperity Party announced the formation of a 7-member Prosperity Party Committee (hereafter the Committee) mandated to negotiate with TPLF.
One of the three principles the Prosperity Party has announced as guiding the Committee’s approach to the negotiation is respect for the federal Constitution and constitutionalism. This piece argues that if this statement is taken seriously, there are questions that need to be carefully considered and addressed before the negotiation is started. The first part explains the potential challenge that would face the negotiation based on the legal capacity of the Committee and TPLF to negotiate and reach a legally enforceable agreement. The second part deals with substantive legal questions pertaining to the potential subject matter of the anticipated negotiation. The final part proposes measures to be taken to rescue the process and outcome of the anticipated negotiation from being legally questionable.
Legal Capacity of the TPLF and the Committee
The legal measures the Federal Government has taken have deprived both TPLF and the Regional Government of Tigray of their legal personality without which neither can, in law, perform any legally enforceable act. The House of Federation has declared the 2020 Tigray’s regional election, based on which the Region established its legislative and executive organs, unconstitutional and therefore void. By doing so the House of Federation has made the Tigray Regional Government legally inexistent. Similarly, the House of Peoples Representatives has deprived TPLF of its legal capacity by proscribing it as a terrorist organization (Article 22 of the Prevention and Suppression of Terrorism Crimes Proclamation No 1176/2020). The National Election Board cancelled the licence of TPLF as a political party. The consequence of this deprivation of legal personality of the two entities is that in principle they do not have the legally required capacity to perform a legally enforceable act. As I have argued elsewhere, the exception where the TPLF could arguably has the capacity under international law, while being a terrorist organization, is to extend the applicability of the Geneva Convention to the armed conflict and by extension to cessation of the armed conflict, but not to go further and engage in a wide-ranging negotiation.
Though on a different ground, legal capacity of the Committee as well is questionable. As noted, the Committee is formed and empowered to negotiate by the Prosperity Party’s Central and Executive Committees. In view of that, this Committee would only be mandated to deal with matters which are of concern to the Prosperity Party. There is no legal way for this Committee to represent the Federal Government. For a committee to represent the Federal Government it should be formed within the federal governmental structure. Even if the ruling party at the Federal level is the Prosperity Party, the Party’s decision, if not endorsed by the federal government organs (Council of Ministers or the Parliament), would remain a party matter as distinguished from a state matter. The fact that ministers or other federal authorities are members of the Committee does not make it representative of the Federal Government. Thus, the legal basis for the Committee to negotiate with TPLF representing the Federal Government is questionable, if not outright usurpation of state power by the Prosperity Party.
Scope of the negotiation
Legal capacity of the Committee and TPLF to negotiate and resolve the conflict as it may, another crucial matter relates to the scope of the mandate of the Committee—the scope of subject matter that the Committee can negotiate with TPLF. Though the subject matter of the negotiation is said to have been deliberated within the Executive and Central Committees of the Prosperity Party in their party room, it has not been publicly announced.
Involvement of several actors in the conflict is public knowledge. However, settling it through negotiation has been wrongly viewed as something that involves only the Federal Government and the TPLF as negotiating parties. While the respective roles of the executive and the two representative bodies (House of Peoples Representatives and the House of Federation) within the Federal Government itself needs to be carefully considered, other real parties in interest are the Afar and Amhara Regional States.
While some aspects of the conflict have to do with the relation between TPLF and the Federal Government, others pertain to TPLF’s relation to the Afar and Amhara Regional States. Due to their geographical proximity with Tigray, the two regional states are uniquely situated in this conflict. There are matters that specifically concern the two, as distinguished from the other members of the Ethiopian federation. Thus, it is important to identify matters that concern the two regions on the one hand and those that concern the Federal Government on the other.
As far as federal aspects of the conflict or the negotiation are concerned, Afar and Amhara do not have any better claim than other regional states to participate in the negotiation. Similarly, there is no reason for the Federal Government to participate (as a party) in the matters that concern the relation between TPLF and the two Regional States.
Composition of the Committee might give it the appearance of representing the interests of the two Regions. First, officials from Afar and Amhara Regional States are included in the Committee. Second, some of the members, including the Chair of the Committee, are federal officials from the Amhara Prosperity Party. However, membership in the Committee should not be confused with involving the two regions independently in the negotiation. These officials are elected by the Executive and Central Committees of the Prosperity Party (but not nominated by the two regional states) in which case they cannot be considered as representing the Regions. In particular members of the Amhara Prosperity Party, who are federal officials, do not have any legal link with the Amhara Regional State. Legally speaking, there is no difference between them and members of Prosperity Party from any other region as far as representing the Amhara Regional State is concerned. Thus, their membership in the Committee could not be viewed as representation of the Amhara Regional State. Since States have their own distinct interest to be pursued in the negotiation, they have to appear in the negotiation on their own. The federal government, too, has to appear on its own and play its own role and pursue its own distinct interest in the negotiation.
It follows that owing to fundamental differences between the interests and powers of the Federal Government and the States (as demonstrated below), a committee composed of representatives of the Federal Government and the two States cannot be entrusted to negotiate with TPLF even if the committee members were nominated by the federal government and the states (instead of by the Prosperity Party). The Committee’s current confusing composition is attributable to its establishment by the Prosperity Party. Had the matter been approached properly as a state, but not party, affair the States, and the Federal government would have been represented by their own negotiators nominated by their respective governments.
The problematic consequence of this confusing composition of the Committee on the anticipated negotiation can be demonstrated by taking one of the sources of dispute between Tigray and Amhara Regional States —the Wolkait case.
Negotiating Wolkait
Among the places the Tigray and Amhara Regional States have territorial disputes one is the Wolkait area. As a matter of fact, Wolkait had been within the Regional State of Tigray from early 1990s till November 2020, when following the clash between the Federal Government and TPLF the Amhara Regional State took control of the area and remained there. The Amhara Regional State and Wolkait’s current administration underscore that Wolkait was made part of Tigray through illegal means. Wolkait being a bone of contention between the Amhara and Tigray Regional States, media reports anticipate Wolkait as a likely thorny problem in the anticipated peace talks. Indeed, following the Prime Minister’s announcement of the intended negotiation, both TPLF and the Amhara Regional State were quick to indicate that Wolkait is a non-negotiable integral part of their respective region.
In ‘Multiparty negotiation: what is it?’, Larry Crump has rightly observed that a party that ‘owns’ the problem or opportunity under negotiation and directly experiences the consequences of the negotiated outcome is a primary party in a negotiation. The FDRE Constitution incorporates this idea in the context of border disputes between member states of the Ethiopian federation. Its article 48, which deals with state border disputes, in clear terms provides:
“All State border disputes shall be settled by agreement of the concerned States. Where the concerned States fail to reach agreement, the House of the Federation shall decide such disputes….”
According to this provision, which is replicated under Article 23 of the Consolidation of the House of Federation and Definition of Its Power and Responsibilities Proclamation No. 251/2001, the Federal Government (the House of Federation) is mandated to arbiter border disputes between states — it cannot be a party in such a dispute. Negotiating on this matter is exclusively reserved to the concerned states. Because the Constitution requires the Federal Government to be an arbiter in such cases, it cannot even claim to have been delegated by the Amhara Regional State. Because such delegation would give the Federal Government a negotiator role, which is incompatible with its constitutional function (arbiter), it would be constitutionally invalid. Furthermore, Article 50 (9) of the Constitution authorizes delegating powers and functions of the Federal Government to the states not the other way around. Article 50 of the FDRE Constitution, which deals with division of power between the Federal Government and the States, under its sub article 8, requires both the Federal Government and the States to respect the powers of each other. It follows that an attempt to settle the border issue between the Tigray and Amhara Regional States through negotiation between the Federal Government or Prosperity Party Committee and TPLF would risk contravention of the Constitution.
This approach would also breach the fundamental principle of fairness. Dealing with the border issue in the anticipated negotiation between the Committee and TPLF would exclude the Amhara Regional State from participation in a matter that directly concerns it. That would make the negotiation a forum where TPLF would make its case against the Amhara in the absence of the latter. This would deprive the Amhara of the opportunity to be heard, making the fairness and legitimacy of the negotiation process questionable and the validity of the outcome susceptible to challenge.
The Way Forward
Ending the conflict through peaceful means is commendable. Equally important though is ensuring the legality of the approach taken to end the conflict. The Prosperity Party’s expression of commitment to negotiate within the framework of the Constitution has to be taken seriously. The government should not be tempted by the expediency of the approach it has taken to manage the awaited negotiation. If the approach lacks legal basis, both the process and the outcome will be subject to question and will have its own impact on respect for rule of law in the country.
The following measures could be considered to save the anticipated negotiation process from being incompatible with the constitution and other laws of the country thereby jeopardizing the validity of its outcome.
1. The Government has to ensure that the Committee represents the Federal Government but not the Prosperity Party. To do that it has to consider carefully as to which of its organs (executive or legislative) has the power over negotiation with TPLF. It should then get a committee to be established by the concerned organ of the Federal Government. With some changes in the Committee’s membership, the Federal Government can get the Committee endorsed by the concerned government organ. That process will ensure that the Committee would be composed of members only from the Federal Government (as it should be) and have the mandate to represent it.
2. Because in principle both TPLF and the Tigray Regional Government have been deprived of their legal personality, their legal capacity to do acts that would have legal effect including negotiation in which a wide range of issues would be raised is questionable. Restoring the legal personality of the Regional Government established by the 2020 Tigray election might not be feasible as the House of Federation has declared the election void. However, the Federal Government may consider restoring the legal personality of TPLF through de-proscription and/or recognizing the Tigray Regional Government which was in place before the 2020 Tigray regional election (the latter needs willingness on the part of TPLF).
3. The Federal Government has to be careful not to negotiate on matters that are constitutionally given to the States of Afar and Amhara. The Committee’s capacity to represent the Federal Government is questioned for being established and empowered by the ruling Prosperity Party. Its lack of capacity to negotiate on matters that fall within Regional State’s mandate is not dependent on its being Prosperity Party’s Committee. The Committee would remain constitutionally incompetent to deal with the matter that concerns the two Regional States even if it were created by the Federal Government. That is, even a committee properly constituted by the Federal Government has to negotiate on matters within its constitutional mandate reserving the matters that concern the regions for later settlement in accordance with the law. To the extent a matter that concerns the two regions arises during the negotiation, the Federal Government should only commit to TPLF that the matter will be resolved in accordance with the Constitution with the participation of the concerned Regional States. If for some reason an actual deal relating to a state matter must be reached during the negotiation, the concerned region (Afar and/or Amhara) has to be represented on its own (not as a member of the Committee established by the Federal Government) in the negotiation on matters that directly concern them.
Wondwossen Demissie Kassa (PhD) teaches law at Addis Ababa University
__