The New Ethiopian Constitution: First Thoughts on
Ethnical Federalism and the Reception of Western
Institutions.
Ugo Mattei
Copyright U. Mateei, 1995.
Introduction
If you ask a comparative lawyer to take a look to a
"new" code or constitution, the answer that you are
more likely to get is that there is not much "new"
in it. This sort of reaction happens in front of
the new Ethiopian Constitution too.
Of course, this is true in general, if you look at
the law as a worldwide phenomenon of social
organization. The number of truly original laws and
institutions (and of constitutions, of course) is
very much limited. It has always been easy for
comparative lawyers to find a certain number of
paradigmatic (or leading) experiences that are
followed and/or adapted worldwide (1).
What can be very new for a given country, and
appears so for scholars concerned with its
particular legal system, looks most times like a
"deja vu" for comparative lawyers.
The new Costitution, to be sure, is a big change in
the Ethiopian constitutional tradition. To much
regret, however, short from putting Ethiopia as a
frontrunner of a new and ripe African
Constitutional tradition, it locates it within the
mass of contries that, for one reason or another,
follow the rethoric (part of) the structure, and
many of the cathegories of the American model in a
more or less conscious attempt to import the
strongest version of the western conception of the
rule of law.
The new Ethiopian constitution, in my mind, offers
to the scholarly comunity an occasion to ask
fundamental questions such as: is the western rule
of law a desirable target for an African Country?
What are the fundamental structural and cultural
arrangements that a legal system must offer in
order to make the rule of law work as a legitimate
problem solving device? Can a Constitutional
document, although a very sophisticated one,
provide, if left alone, the basis for the rule of
law? Was it an unrealistic dream to expect from
Ethiopia new and original constitutional
arrangements able to face ethnic tensions and
problems of development outside of a dangerous
intellectual dependecy from the western concept of
the rule of law?
The Ethiopian Constitution of december 8, 1994 is a
new wall made of old imported briks. How solid such
a wall will result in front of the tremendous
pressure that it will have to face, is a question
that it is early to answer. I argue here that,
given the briks of which it is made, there is not
much to be optimistic about.
1. Getting rid of the African legal tradition one
step at the time: 1987 and 1994 Constitutions.
Many scholars argue that a non ethnocentric
classification of the major legal systems in the
world need to give up the old tripartition between
common law, civil law and socialist law. In
particular, the role of legal pluralism should be
taken into account because many countries of the so
called third world do share this particular legal
style(2). Africa is no ecception within the third
world. The Horn of Africa is no ecception within
Africa and Ethiopia is no ecception in the Horn of
Africa.
Pluralism, however, falls short from offering a
structural qualitative criterium of distinction
between the Western Legal Tradition (WLT) and the
different legal traditions in the world (3). A
complementary perspective focuses on the main
characteristic of the western rule of law: that of
a legal process separated in principle both from
the religious tradition (lawyers and priests are
different social actors) and from the political
process (lawyers and politicians perform different
jobs)(4). In non western legal traditions either one
or both these distinctions are absent.
In Ethiopia, the political religious and legal
processes were deeply intermengled during the Negus
regime. Both the 1931 and the 1955 Haile Selassie's
Constitutions were almost "cynical" in their
realism. The emperor was recognized full political
religious and legal power. Religion as well as
force was the source of legitimation of the negus.
This was possibly the strongest anthidote to
political fragmentation in the hands of the Amhara
ruling class(5).
The marxian turn that was taken after the Derg
revolution (1974) went a step ahead in separating
different social functions. The stalinist regime of
Mengistu Haile Mariam, of course, did not proceed
any step in the direction of the rule of law and of
the separation between law and politics. The 1987
Constitution however made clear that Mengistu was
not claiming any religious power. Law and politics
were separated from religion. In this sense it was
a step foreward in reaching the separation between
the three spheres of social control that we assumed
typical of the western rule of law(6). Of course, it
has been argued that the change between the Negus
and the Mengistu regimes was just nominal. While no
signs of limitation of the sovereign power appears
in the 1987 Constitution, marxian ideology was just
proposed as the new state religion. It is however
undeniable that a traditional Ethiopian (or more
broadly African) source of legitimation and of
political unity was lost.
The final step is taken in the 1994 constitution
whose task appears to be introducing the "rule of
law" in Ethiopia. Thanks to the help of foreign
experts, not only the clear separation between law
and religion is confirmed. For the first time in
Ethiopia, the political leadership is subject to
the law. The legal and the political processes are
finally separated. Even the military is kept aside
of the political scene. The Western Legal Tradition
has found its way all the way to Addis Ababa.
Everybody who puts a value on political unity may
be worried. It is not granted any more by a
reeligious monarchy. It is not granted anymore by a
marxian egualitarian ideology. It is not granted
anymore by unrestricted political\military
leadership. The enthusiastic western reaction to
the reduction of the inflation rate may not be
something appealing enough for the people to
substitute the rule of tradition and the rule of
politics as effective means for keeping unity.
While some scholars may welcome this remarkable
achievement, in this paper I will take a rather
different perspective. I will argue that this
evolution is just another example of an
ethnocentric and ahistorical episode of cultural
imperialism. It is the result of intellectual
dependency, the last but not least dangerous,
between the power relations in postcolonial Africa.
It is likely that the result of this constitutional
evolution, inherently foreign to the African
structure of power and decisionmaking, will simply
result in another piece of unapplied written
legislation.
The new Constitution locates itself clearly in the
modern ( or modernized ) layer of the law. It is at
this level of the legal system that it must be
analized: and this is why it is likely to remain
largely unapplied. Chances are, however, that this
remarkably sophisticated constitutional document,
the product of an enlightened western braintrust,
will create serious damages in a political scenario
which is already complicated and dramatic enough.
In particular, I see problems arising from an
American patterned rethoric of rights and of
competition, the foundations of an ethnic
federalism extremely dangerous in Africa as
elsewhere, the institutional weakeness, and the
unbareable complexity of the constitutional
organization.
2. Some bakground
The polytical background of the new constitution is
too well known to be discussed here. Important to
our purposes is only that none of the polytical and
ethnic forces which make the opposition to the
Ethiopian People's Revolutionary Democratic Front
(EPRDF) had participated to the Constitutional
making process. All opposition parties, most
important those representing the Amhara and Oromo
groups ( 38 and 35 % respectively ) withdrew from
the electoral competition.
The new Constitution is therefore supported
politycally and ethnically only by the Tigrynia
minority which counts less than 10% of the
population(7).
The following alternative was therefore open for
the EPRDF leader and now president Meles Zenawi: 1)
a constitution supporting a strong leadership,
imposed by political force, with some risks as far
as the international support is concerned. Or 2) a
constitution which shows the willingness to share
power, in the hope of eventully obtaing larger
internal consent and with the certainty of western
sympathy. The second option was followed thanks to
the remarkable enlightment of the tygrine elite.
Some less sympathetic commentators have detected
behind this choice a divide and rule strategy, a
priviledged attitude towards Eritrean independence,
and a way out in case of political defeat. This
last interpretation seems to be supported by the
provisions on secession which introduce a major
limit to the correct use of the word "federalism"
in the new denomination of " Federal Democratic
Republic of Ethiopia". indeed, as it has been
immediately pointed out(8), secession and federalism
are incompatible cathegories. A comparativist may
only add, at this point, that a framework for a
rather weak executive, breakes with the tradition
of African leadership. This in turn may mean two
things. Either that the structure of power in the
books does not correspond to that in action, or
that this constitution introduces so many
incentives to secession that the unity of Ethiopia
as a Federal state is not going to last much.
As it is very well known, all the federal
experiences that proved succesful in the course of
history do introduce an effective centralizing
corrective (such as presidentialism) to the
allocation of substantial powers to the states. On
this particular point we will come back later.
3. An Academic Constitution?
A good experiment would be to cancel a few
provisions of the constitution such as those in
which the word Ethiopia is contained, or such as
art. 47, which contains the list of the member
states of the Federal democratic Republic of
Ethiopia, and then ask what links such a document
to the Ethiopian reality. If there were many of
such links, this document could not be prroposed as
a constitution for a different country. Otherwise,
changing the word Ethiopia, we could have a model
constitution apt to fit all the realities.
The treasure hunt for typically Ethiopian (or even
only African) provisions gives indeed meager
results. Four provisions (Art 32,1 and 40, 5; art
41; art 44 ), granting the right of free
establishment in any place of the country, are what
remains of the cruel practice of Menghistu ( but of
other dictators too ) to relocate the population.
Art 28 reflects the past tragic experience of the
"red terror" by banning the statute of limitation
for crimes against the humanity.
A few provisions such as those on private vs.
public property (art. 40) do reflect a typical post
colonial arrangement, precluding the de plano
substitution the word Ethiopia with Norway or with
Europe. There is not much specially Ethiopian in
all of this, however, and such mixed provisions on
property rights may be found also today in post
communist Eastern European countries not to speak
about other African or Asian countries.
As I've pointed out elsewhere(9), this structure of
property rights does not break at all with the
colonial structure, nor is it rooted in African
peculiarities but just reflects the colonial
relationship of power as inherited by the post
colonial leading elite in front of the ordinary
citizens. What it may be remarked here is how
communist African regimes were able to introduce
colonial structures even in those contexts such as
Ethiopia where (political) colonization has been a
very marginal phenomenon (10).
Finally, another couple of articles try to reflect
legal pluralism: in particular art. 34, 5 " the
Constitution shall not preclude the adjudication of
personal or family disputes by religious or
cultural laws..." and Art. 78, 5 "The Council of
People's Representatives and State Councils can
establish or give official recognition to religious
and cultural courts". While the former just
reflects an unavoidable reality, the latter is
rather braggy since it assumes a relationship of
(effective) power between official and unofficial
law which was never been the reality anywhere in
Africa.
These few provisions were all I was able to locate
that would make this constitutional draft
unsuitable for a European or for a Northern
American country. Indeed, the impact of American
constitutional rethoric is staggering. It is not
only the rethoric and the fundamental federal
structure of the U.S. Constitution which is
reflected here. There would be nothing unusual in
this. After all, the U.S. constitution has always
been the most influential constitutional document
in the world. What I'm observing is the impact of
the rethoric of American modern law professors
which appears rather ridicolous out of context.
A cursory look to the constitution will give you
the flavour of what I'm talking about: Art. 9
tells us that the constitution is " The supreme law
of the land". Art. 14 assumes the necessity of a
trio of fundamental values : " life liberty and
property" becomes " Life liberty and the security
of the person". Art. 19 introduces the Miranda
warning made famous by the American movies: the
Ethiopian person arrested has "A right to remain
silent and to be notified that any statement that
they make or evidence they give may be used against
them in court". The "rigt to privacy" is not only
generally guaranteed ( art 26) but also
specifically to the accused ( art 20). " Double
Jeopardy" is prohibited (art 23). Of course " the
equal protection of the law" is granted (art 25)...
Many other examples of american constitutional
language can be found.
Talking about fashionable provisions (within the
American academia) we will find that the press
should not only be free but "diverse" (art. 29, 4);
women are entitled to "affirmative" action in order
to be able to "compete on the basys of equality
with men in political economic and social life"
(art. 35,3). The problems that may arise from the
competition between men and women should be
resolved "in the best interest of the child" (art.
36,2). Ethiopians should have a "Right of Access to
justice" which, of course, can be effective only
with the introduction of class actions (Art 37, 2).
A right to a "clean and healty environment" (art
44) completes the list of the rights formulated
with academic rethoric. Other non american
faschionable ideas find their way in the
constitution: between these the Scandinavian idea
of the "ombudsman" (art 55, 15) which in the
eighties became a "must" for any proposal claiming
to be progressive. The right to "sustainable
development", whatever it may mean, found its way
in the constitution as well. A very progressive
section on social rights is added. It would be
difficult for a Scandinavian country to afford its
implementation.
4. A brief scketch on the institutional framework
and its western models.
If the rethoric and the flavour of the Constitution
is clearly American, the fundamental structure of
government is rather mixed.
As I have mentioned, the fundamental "federal"
arrangement reflects the U.S. model (some
knowledgeable commentators claim that there is an
Indian influence at play here) with all the
residual powers allocated to the member States
(Art. 52, 1). The parliament is divided in two
chambers which have rather different constitutional
roles. The Council of People's Representatives,
elected " For a term of five years on the basis of
universal suffrage and by direct free and fair
elections" (art. 54 1) is the legislative branch.
The Federal Council, whose members are elected by
State Councils (also established by the
Constitution) is composed of "Representatives of
nations, nationalities and people" at least one for
each of them, plus an additional member for nation
or nationality for each one million of its
population" (Art 61).
This body has a crucial role in a Federation under
constant threat of secession because it has the
role of supreme interpreter of the constitution and
of referee of all the ethnical (including boarder)
disputes. That is why provisions a little less
vague on its composition (particularly in Africa
where the censiment of the population is not
precise) would have been advisable. It is however
true that the role and the actual composition of
the Federal council can not be discussed if the key
question of the nationalities and of theyr
representation is not resolved first (Art 47, 1,2).
The president (art. 71) has a rather symbolic role
(like the Italian or the German). The executive
Power is vested in the prime minister and in the
Council of ministers which are politically
accountable to the Parliament (Art.72,1). Political
parties are mentioned many times in the
constitution. From an Italian perspective this is
just another evidence of the very weak position of
the federal executive in Ethiopia, and of the major
problems that may arise out of it. On parties I'll
come back in the conclusive remarks.
As far as the judiciary is concerned, the mixed
nature of the systems is even more clear. Following
the U.S. example, "The supreme Federal Judiciary
authority is vested in the Federal supreme court" (
Art 78, 2). The same provision grants the
possibility of estyablishing federal lower Courts.
State Courts will adjudicate federal questions if
such a lower judiciary is not established. Special
Courts are prohibited and tenure of office is
guaranteed in order to guarantee the independence
of the judiciary. No salary guarantee is introduced
to give effectiveness to such independence.
The mixed nature of the judiciary is showed by a)
the typically French civilian power of cassation
that is given to the Federal supreme Court aside of
the regular "final" appellate power and b) by the
denial of constitutional adjudication to regular
courts. Such power of constitutional adjudication,
following the German model, is exercised by a
Constitutional Court, called Council of
Constitutional Enquiry (Art. 82) which receives
jurisdiction incidentally from judges and parties
when an issue of constitutional law arises. How
this power of constitutional adjudication actually
relates with the "power to interpret the
constitution" enphatically given to the Federal
Council by section 1 of art. 62 is not clear.
Two final remarks should be added here, both
pointing to a very problematic applicability of the
constitutional framework. Judges are politically
appointed by the Council of People's
Representatives on proposal of the Prime Minister
on the basis of a selection procedure made by a
Federal Commission for Judicial Administration
(art.81). This is jet another organ in the already
full arena of law officers. This overwhelmingly
complex legal and constitutional structure, will
absorbe a tremendous amount of the very scarce
manpower of jurists. Particularly, if the dual
level of State and Federal Courts its thought to be
fully fledged.
5. Some final remarks.
The federal Constitution confirms the mixed nature
of the modern layer of the Ethiopian legal system.
This characteristic was already at play with Heile
Selassie whom, as it is very well known, was freely
borrowing legal institutions from the French (Civil
Code) and from the Anglo American tradition. This
mixed nature is probably the product of the weak
colonization which affected Ethiopia. In African
States which experienced a strong and longlasting
colonization by one single power the flavour of the
legal system has not changed after decolonization.
The American model the dominates today's Ethiopian
Constitution is the leading legal system worldwide.
Most of its success is due to its effectiveness in
protecting individual rights in the course of the
two world wars (11). The rethoric of individual
rights, of individualism and of competition that is
produced by the American model could not be more
foreign to te African mentalite'.
A strong and ideological assertiveness of rights
can have very destabiliziong impact on the
Ethiopian society. This is in particular true when
such rethoric touches such crucial problems as self
determination and secession. A Somali legal
scholar, Ahmed Botan, has cxonveyed with bitterness
this idea with a sad joke which was circulating in
Addis Ababa during the negotiations for the peace
in Somalia: "Somalia and I against the world. My
clan an I against Somalia. My family and I against
my clan. My brother and I against my family. Me
against my brother!" (12)
A well developped rule of law based on individual
rights can not live outside of a constant process
of mediation, that in more advanced western
societies is given by the legal culture. In
Ethiopia at the moment there is no legal culture
and the state in which legal scholars are abandoned
in the University of Addis Ababa does not allow
many hopes for the future. It is not rights
assertiveness that should be borrowed from the
American experience: it should be the ability to
arrange continuity and change within a flexible
institutional framework accepted by a number of
very different people.
In Africa, right assertiveness is particularly
dangerous if it is understood as rights of a clan
to be asserted agaist the others. The traditional
decentralized ethnic African society endorsed and
endorses a decision making style that could not be
more far from the western right assertiveness. It
was a culture of mediation, of unanimity, of
peacekeeping not much different from the
international law which governs the international
community. (13)
Possibly the Ethiopian constitution opens to this
model by granting an important right of secession.
Such right, however is in contraddiction with the
very idea of a federalist constitution and a lawyer
should point out this contraddiction. If the right
to secession will become a possible way to find new
arrangements of coexistence more simple and
suitable to tha African reality than a very complex
American based mechanism of federalism is an open
question. It is sure however that federalism to
work requires a high degree of political and legal
expertise that not many countries in the world
enjoy today. It should be added, however, that
ethnical federalism particularly when ethnicism
gets represented by political parties (politicized
ethnicism) is the worst of the possible worlds.
If Africa desires to borrow from western
institutions, which I do not belive to be a sound
policy, i belive it should do so after a serious
comparative analysis of the pros and the cons of
each institutional alternative. If there is
something that the American model can teach, is the
absence of any ethnic element in an efficient
federalism. What is crucial is to detect the best
institutional level in which decision making should
be exercized. From this point of view, some hopes
may come from art. 55, 6 which mandates the Federal
legislature to codify in civil law only to the
extent that " The Federal Council deems necessary
to mantain and sustain one economic community".
This idea or perhaps its lighter application, the
so called principle of subsidiarity which is
nowadays leading the European integration, may be
considered as alternative ways to create federalism
without pointing all the stress on the ethnical
level.
Another secret of the success of the American
political system which can be crucial in
multiethnic communities is that it has protected
the minorities in their fundamental political
rights in a rather satisfactory way thanks to its
high level of legal culture. Even more important,
the American political system has worked out an
electoral system that attracts minority wiews in
the mainstream, rather than causing the
proliferation of parties.
Despite the presence of nearly one hundred nations
within it, Ethiopia is a rather unitary nation
state if compared with other African realities(14).
Ethnicity should not be disregarded, as it happened
in the past history, but we should not fall in the
opposite extreme of interpreting every and all
African social dynamics as a function of it.
To make this constitution work, there is much need
of intermediate circuits of decision making between
the State and the ethnic group. A serious political
and institutional effort should therefore be made,
when and if the constitution will be actually
applied, to keep low the number of political
parties by mean of ad hoc electoral laws. This
would be the only possible way to defeat the
"politicized ethnicism"(15) because it will force
ethnic political groups to seek coalitions before
participating to political elections eventually
bringing to the birth of two major parties.
As it has been noticed in a recent article, it is
within the political party that the whole african
art of mediation and of search for unanimity could
find a "modern" substitute for the village meeting
and for the other traditional decision making
devices(16). Leadership within major parties may
eventually reduce some of the problems created by
the potentially weak government described in the
constitution.
Of course all of this lead us to question the
assumption that the rule of law as distinguished
from politics and the rule tradition is a good
achievement in Africa in general and in Ethiopia in
particular.
Notes
(1) See SCHLESINGER
(2) See VanDer Linden e Reyntiens
(3) see Griffith, What is legal pluralism
(4) see Mattei, Verso una tripartizione non etnocentrica dei
sistemi giuridici
(5) See Brietzke, Ethiopia leap in the dark
(6) see Sholler in Reyntiens
(7) This fiugures (apparently understated as far as the
Oromo are concerned) can be founf in the 1980\84 census
cited in Brietzke cit. supra
(8) See Brietzke
(9) Mattei, Socialist and non socialist approaches to land
law. continuity and change in Somalia and other African
States
(10) See on this aspect Calchi Novati in Ethiopian studies
congress 1986
(11) see Mattei, Why the winf Changed. Intellectual
leadership in Western Law, Am.J.Comp.L.
(12) BOOTAN, Somalia. Stato Regionale o Cantonizzazione
Clanica?, in Studi Sacco (1994) I 94 ss a p. 117.
(13) See Sacco, Modelli notevoli di societa'
(14) See Calchi Novati
(15) See Botan, cit, M.Aden, ASrrivederci a Mogadiscio
(16) See Castellani