Op-Ed: Beyond the constitutional debate: unpacking the political conundrum

Addis Abeba, May 25/2020 – The Ethiopian constitution drove more interest, analysis and scrutiny in the past month than it had since its promulgation. Politicians and scholars have discussed and debated on what they referred as a constitutional conundrum after the National election board announced that it cannot conduct election as scheduled due to the COVID-19 pandemic.

Lack of clear provisions in the constitution to determine what happens if elections cannot be held for reasons such as a global pandemic is at the center of the conundrum. What is the legitimate constitutional way to extend the elections? Who will have the legitimate power to rule until the election is held? How long can the election get extended? Can regions decide to have their own elections?

Some have argued that these questions are fundamentally constitutional ones and must be resolved by constitutional mechanisms only. To the contrary some others have argued that this is primarily a political problem and solutions must be sought politically.

Constitutions are political documents and are supposed to devise systems and institutions to address issues, including political ones such as this one. When constitutions resolve political problems, it is rightfully called the rule of law which is a means and an end in any constitutional democratic system.  

However, Ethiopia’s current context requires a closer look at political issues, motives and positions that underpin the constitutional conundrum if it is to have any chance of success in sustaining the political order.  Many have written on the political issues and proposed solutions. At the risk of being redundant, or even stating the obvious, this article is an attempt to examine the political conundrum and analyze the possibility of success of the constitutional process. 

What is really the political problem?

PM Abiy came into office in the middle of a protracted political crisis that was at the verge of exploding to a full-fledged security crisis. EPRDF lost its legitimacy to rule and PM Abiy’s group assumed power preaching transition to democracy. In fact the biggest political promise the PM made has been delivering a free, fair and competitive election.

 A lot has happened since then, EPRDF is effectively dead and the new Prosperity Party seems comfortable in power. However, the political issues that resulted in the political upheaval are still not resolved and new contestations have emerged, particularly with the ruling party in Tigray. Some meaningful measures were taken to open up the political space. But the democratic transition had no roadmap and major contradistinctions in Ethiopian politics, including on approach to nation building, the future of the multinational federalism and economic governance still remain.

The contradiction in political views is out in the open and the contestation for political power was warming up when COVID-19 occurred. The legitimacy deficit of the government was manifesting itself through a decline in monopoly of violence, undermined authority and decline in effectiveness.

The popular legitimacy enjoyed by the government of PM Abiy administration when the transition started was based on these promises and the trust opposition groups had on it. That is starting to slide. Although it did deliver on some legal and institutional reforms it promised, it’s not considered enough or genuine by adversaries.

The opposition blames the government for consolidating power at the expense of delivering its promise for a democratic transition. From the beginning, some of these opposition groups claim credit for the political change much more than the ruling party and do not really believe that Prosperity Party has authority over them. Its former comrade, TPLF, accuse it for illegally dissolving EPRDF and usurping power.

The leadership of PM Abiy cannot count on delivery legitimacy (economic opportunities) and coercive power as his predecessors did. The popular legitimacy it had enjoyed is waning, in more places than before. The real legitimacy it had comes down to the democratic one, which it claimed to have acquired through an election that even PM Abiy himself agreed was not free and fair. But that mandate is expiring by end of September.

The contested legitimacy of the incumbent extends to the systems and institutions of government and the constitution that established them. It is quite surprising to see the current discourse being dominated by constitutional debate while even two years ago this very constitution was highly contested as a legitimate rule of the game in Ethiopia’s political dispensation. It is not accepted at all by some political groups and by some the institutions it established are not accepted for being dominated by the ruling party.

One good thing is, despite benign tension violence has relatively subsided in recent months. Everyone seems to choose to be patient including those who want to fundamentally change the constitution and those who claim to fight for its full realization. If that patience was until the much awaited elections, its postponement is a huge test to that.

Political motives

It is expected that different political groups will have different positions on the postponement of the election and how it should be done. Notwithstanding the constitutional options proposed by government, these groups have their own political motives and positions in supporting and/or rejecting a certain course of action. Identifying these groups, which is of course non exhaustive,  and understanding their motives might help to predict if the government’s preferred course of action will be accepted and respected.  

The first group could include politicians that are calling for political solutions such as transitional governments or fundamental re-negotiation including on the constitution itself.  Their motive is to use this opportunity to change or fundamentally revise the constitution and governance system it established. They have been very good in articulating and publicizing their position clearly. This might include politicians like Lidetu Ayalew and political parties like NAMA.

In their defense, these groups have been consistent in rejecting the existing mode of federalism and the fundamental narrative the constitution was built up on. They label the constitution as a political document architected by ethno-nationalist groups who won the civil war, such as TPLF and OLF. They see the multi-national federalism as the reason for Ethiopia’s political problem and reconfiguration as the solution. 

The fact that the constitution does not offer an outright solution to the current problem is used as evidence by this group that it is inadequate and must be revisited. They see the incumbent continuing in power as less threatening than the constitution and would rather be patient if it is going to lead to its alteration. They are happy to go with the incumbent in power or some sort of a transitional arrangement until a new political settlement that they favor is found.

It is very unlikely that political groups in this category accept the outcome of the constitutional solution process, if it does not involve some sort of political process to get them what they want or at least a process that might lead to that.

The second group includes politicians that are insisting that the election should be held or held within a very short period of time after the expiry of the term of the current government. Their motive is safeguarding the continuity of the existing multinational federal arrangement with self-rule, self-determination and regional autonomy.  Ethno nationalist parties including TPLF and OFC could be included in this group.  

The most common denominator for those in this group is their mistrust for the Abiy’s administration. They see him as unprincipled politician whose stand on the federalism is not clear. They have a fear of centralization by his administration and they don’t want to lose any more than they already have by trusting Abiy.

For TPLF, Abiy has committed the greatest betrayal against them. They conceded without bloodshed but were constantly demonized, attacked and bullied by their former comrades. They were blamed for all the bad acts and kicked out of federal power through dismantling EPRDF. They feel that Prosperity Party is threatening even their mandate to rule their own region with the rise of personal authoritarianism and continues silencing of regional voices.  For the likes of Jawar Mohammed, Prosperity Party is in power because of the struggle they led but has effectively devised its own agenda and started to act like a legitimate government with abusing its incumbency.  

They believe the incumbent is using the constitutional conundrum to further consolidate its power. They are very unlikely to accept the constitutional solution if it is not collaborated by a political arrangement that would give them a meaningful leverage to control the incumbent from taking decision in its favor. The only problem is they are not really clear on what this arrangement should look like and how it should be implemented. 

The third group includes the incumbent and its supporters.  Their motive is staying in power, at least until the elections, whenever that could be. They claim that, unlike what the opposition is saying,  there were real efforts to hold the election during the election period had it not been disrupted because of COVID 19 pandemic. They did grow more confident about their chances of winning the election and they want to keep it that way.

The reason could be some benevolent understanding of themselves as the best chance of Ethiopia’s democratic transition or even its survival. It could also be fear that if they agree to any sort of caretaker or transitional arrangements, they will lose their comparative advantage for winning the election and that might mean retaliation if it’s going to bring groups like TPLF or Jawar Mohammed to power. This fear for ethno nationalist groups coming to power seems to be shared by some opposition parties that see the incumbent government as the lesser evil. It could also be because they just want to stay in power and their commitment to democracy is only strong as long as it is compatible with their objective of maintaining power.

In any case, it seems that the Prosperity Party led government not only wants to stay in power until the elections, but exercising the full powers of the state. To reinforce this, they have added to their argument that there is an imminent threat to Ethiopia’s sovereignty, although they did not provide an explanation or evidence. Their disinterest in entertaining the idea of political negotiations shows that they are not only confident that they will get the outcome they want from the constitutional solution process, but they will get away with it.

Will the constitutional solutions address the political conundrum?

It should be clear by now that the situation we are in is both a constitutional and a political conundrum. In fact it is the political enigma we are in and have been for the past few years that make the constitutional conundrum more complicated. Otherwise if this constitutional loophole had materialized at a time where we didn’t have major political issues, finding a constitutional solution would have been enough. 

As the above analysis tried to show, it is very unlikely that the constitutional solution process will be accepted by major political actors other than the incumbent and its allies. In that case, will the government be able to enforce it, including by force if necessary? PM Abiy strongly asserted in his recent address explaining the constitutional options and his government’s position that they are willing and able to enforce it using the full force of the state.  Will the opposition engage in further escalation and violence or will they concede to the outcome even if they don’t agree with the process?

What the consequence of going ahead with it remains to be seen. However, it is too risky. It risks the stability of the country and a serious reversal to the democratic transition. The process is likely to put the political order it claims to protect in an even more danger.

One can argue that the government has consolidated enough power to manage and contain any non-compliance. Leaving aside if that is in fact the case, a prolonged legitimacy crises, violence and containment by force will undoubtedly reset Ethiopia’s quest for genuine democracy and completion of nation building.     

There is a strong need to find a common ground that could to the minimum legitimize the constitutional process or at best find some solutions to Ethiopia’s contending political issues. There is enough incentive for that from all sides. There is no point for the government to go ahead with the constitutional process despite the clear objection from opposition parties and knowing that it is unlikely to be observed. There is also no point for the opposition to keep objecting for the constitutional process, knowing that it will also be enforced on them when it is completed.

That should start by designing a mechanism to have a meaningful political engagement complimenting the constitutional process. That will provide a platform for engagement, debate and agreement of major political actors.

Unfortunately dialogue between the government and the opposition on the issue started with a deficit. The initial consultation called by the PM where the government presented the options and informed opposition of its preferred one was labeled as a sham by opposition groups. It was called in hurry and the opposition did not have the opportunity and the space to influence any of dictions.

What this political arrangement would look like, who will participate, how will it operate and what outcomes will be expected needs to be discussed in good faith. This article will also not propose how it should look like. The government must take the initiative and invite scholars and politicians to propose options.  But to begin with, it could be a formal engagement platform that is as inclusive as possible. It must be moderated impartially to ensure the integrity of the process and must have meaningful mandate to warrant obedience of its outcomes.

Similar type of arrangements should also be made at regional levels. The lack of adequate debate on this same problem at regional state levels other than Tigrai is really shocking. Regional states led by prosperity party that have decided not to hold elections as per the term limit, did not start any formal process of extending elections based on their own state constitutions.  

Not a silver bullet

Finding a constitutional solution is not really the silver bullet in our situation. There is no agreement among different political actors on the process and is very unlikely that its outcome will be accepted and respected. That means even if a solution is found in the constitutional process it will be observed in the breach and eventually become a mockery. At least there is a clear risk to that.

A political process might not deliver satisfaction to each political group with diametrically opposite views. Even an election might not be able to deliver that. But it will at least provide a promise. That is why Prosperity Party must agree to and even take the initiative for a political arrangement to have meaningful engagement with major political actors. As Prof. Andreas Eshete indicated in the Council of Constitutional Inquiry (CCI) hearing few days ago, the government should commit itself to engage with opposition groups because there is a huge COVID-19 exacerbated political, security and economic problems. Not use it as an excuse not to.

Even if there is no clarity on what a complimentary political process might look like, there is clarity on what actions and behaviors do not help in finding a common ground. At this critical time, escalation and posturing is a dead end. Particularly the escalation of tension between TPLF and the federal government is worrying. Our infant democratic culture that is married by unprincipled loyalty to values, incumbency with arrogance and ignorance; and winner’s justice must be condemned irrespective of who is in the receiving end of the abuse. The moral deficit of our politics is a problem we cannot solve overnight, but we have to start now. 

It will also be important to understand that the current deadlock could be exploited by foreign powers to their own advantages. The escalation of tension between Egypt and Ethiopia when coupled with the recent Sudanese refusal to Ethiopia’s proposal and the sudden beef up of its forces in the common borders should be seriously taken in to account by all sides. AS

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Editor’s Note: The editors withheld the names of the authors of this op-ed upon their request.