Constitutional Adjudication through Second Chamber in Ethiopia

Abstract

Ethiopia has empowered its second chamber (the House of Federation—HoF) to interpret the constitution and resolve constitutional disputes. This article analyses whether a majoritarian institution such as the HoF can serve as effective mechanisms for the resolution of constitutional disputes. While the HoF has played some role in resolving cases of high political significance such as rights realizing local self-rule, it has of late tilted the federal balance in favour of the centre. The fact that the HoF remained a political organ controlled by the same dominant party meant that constitutionally entrenched civil and political rights remain without a guardian.

Notes

1 Legends take it even to an earlier period but archeological discoveries and recorded history indicate Ethiopia’s state since the first century AD. See Bahru (1991).

2 See the 1955 Revised Constitution that declared Ethiopian as an Orthodox Christian State and Amharic as the only National language of the country.

3 EPRDF is a coalition of four parties, namely the Tigray People’s Liberation Front, the Amhara National Democratic Movement, the Oromo People’s Democratic Organization and the Southern People’s Democratic Movement. It was the dominant force during the transition and remains to be the ruling party even today.

4 Clapham (1994).

5 The OLF was one of the major partners during the TGE representing the Oromos, the largest ethnic group in Ethiopia representing 27% of Ethiopia’s 90 million people. Since then it went into internal crisis and many parties seem to be emerging.

6 Ottaway (2005, p. 73); see also Young (1998) who argued ‘[c]onstitution-making under the EPRDF has little in common with the bargaining, trade-offs, and compromises that usually typify such processes; rather it reflects the weakness of the country’s democratic institutions, the political objectives of the governing party, and its position of dominance within a state where serious opposition had been crushed or marginalized’ (pp. 191, 195).

7 Ginsburg (2003, pp. 24–25).

8 See also Tushnet (2014, pp. 41, 44).

9 See Preamble to the constitution which begins by saying ‘We the nations, nationalities and peoples … .. adopted this constitution.’ Also Article 8 which places sovereignty to the nations, nationalities and peoples.

10 See Ye Ethiopia Hige Mengist Gubae Kale Gubae v. 4 Hidar 14–20, 1987 E.C. (Minutes of the Constitutional Assembly, November 1994) discussions on Articles 59, 61 and 62.

11 See Art. 62(1).

12 Its inclusion in the constitution, apart from the fact that it was a long held view of the current ruling party owing to its leftist inclination, was justified as a means for bringing national liberation fronts’ such as the Oromo and the Ogaden National Liberation Fronts’ with the agenda of secession to the negotiation table. It would have been difficult to persuade such parties join the TGE without the rights mentioned in Article 39.

13 See Articles 82–85 of the Constitution.

14 Cappelletti (1989).

15 The constitution provides framework powers where the federal government stipulates general principles while leaving space for the states to fill in. It also provides for concurrent taxes where the federal government levies and collects taxes but the proceeds are shared between the two levels of governments based on a formula set by the HoF. The chapter on human rights is also concurrent mandate of the federal and state governments as it has been reproduced with minor adjustments in the nine regional state constitutions. This paper does not deal with all types of concurrent powers.

16 Article 3 of Proclamation No. 818/2014 deals with Registration of Urban Land Holding in all urban areas across the country. Not only the mandate of states but also that of urban local governments have been expropriated by this proclamation.

17 Federal Negarit Gazeta of the Federal Democratic Republic Ethiopia: Re-Enactment of Urban Lands Lease Holding Proclamation No. 272 (2002); Federal Negarit Gazeta of the Federal Democratic Republic Ethiopia: a proclamation to provide for urban plans no. 574 (2008); Federal Negarit Gazeta of the Federal Democratic Republic Ethiopia: expropriation of landholdings for public purposes and payment of compensation proclamation no. 455 (2005).

18 Biyadglegn Meles et al. v. the Amhara Regional State petition Miazia 30 1989 E.C. (unpublished).

19 Proclamation No. 89/1997, ‘Federal Rural Land Administration Proclamation,’ Federal Negarit Gazeta, 3rd Year No. 54, Addis Ababa, 7 July 1997; as a result it seems to have fallen into the category of framework legislation.

20 Arts. 5 and 6 of Proc. 89/97 state some general conditions that the state law should comply with. It specifically requires the state law to comply with federal environmental policy, to respect women’s rights, regulates the payment of compensation, and guarantee rights of the holder.

21 Ethiopian Federal Democratic Republic House of Federation First Emergency Meeting, 2 January 2014.

22 According to Article 52/2d regional states are mandated to ‘administer land and other natural resources in accordance with federal laws.’ Based on this clause regional states have been providing land for lease to investors in their jurisdiction until the new centralizing drive.

23 The law in question is the Proclamation to make the Electoral Law of Ethiopia conform with the Constitution of the Federal Democratic Republic of Ethiopia Proc. No. 111/1995, Negarit Gazeta TGE, 54th Year, No. 9 Addis Ababa, 23 February 1995.

24 See the opinion of the CCI (unpublished).

25 There are many normative orientations in constitutional interpretation. Clause bound is not often a preferred method as it focuses on a specific clause of the constitution without looking into the whole text. Purposive (also called teleological, functional) interpretation attempts to resolve constitutional issues by grasping the spirit of the constitution as a unit. See Barak (2006).

26 See Article 38(1) of the federal constitution and Article 38 of proclamation 111/1995 and Article 45 of proclamation 532/2007.

27 See decision of the HoF of Megabit 5, 1995 E.C (12 March 2003).

28 See the opinion of the CCI written on 25 January 2000 (unpublished).

29 See Sen (2006, p. 4); see also Dworkin (1977, p. 3).

30 Dworkin (1996, p. 354).

31 Ginsburg (2003, p. 21).

32 Barak (2006, p. XI).

33 Barak (2006, p. 33).

34 Waldron (2006) for example argues that there is no reason to suppose that rights are better protected by the institution of judicial review than by democratic institutions.

35 Campbell, Goldsworthy, and Stone (2006, pp. 51, 239).

36 The only exception to this overall trend is the decision of the CCI/HoF on Melaku Fenta case made on 2 January 2014 that for the first time nullified two federal laws for violating the constitution.

37 A study that covered 341 judges from four regional states including the federal capital Addis Ababa in 2009 and later in 2013 were consistent in this regard.

38 On occasions the courts have invoked constitutional rights and interpreted them broadly, for example, in relation to child rights, yet such cases are exceptions than the rule. See, for example, Tsedale Demise vs. Kifle Demise Federal Supreme Court Cassation Division File No. 23632 (2006) v. 5 (Decisions of the Federal Supreme Court Cassation Division) v. 5, p. 188.

39 Proclamation 47/67 was a law enacted by the military junta right after it came to power in 1974 to expropriate what was then called ‘extra houses and land’ owned by relatively richer people. The new government that came to power in 1991 attempted to rectify some of the abuses done in excess of the decree by returning some building to the owners.

40 The executive as a key political institution is established for implementing laws and policies of the legislature hence the Amharic term (Asfetsami, executing) and is not meant to be an impartial dispute adjudicator.

41 See note 27.

42 Based on the instructions of the HoF, the Federal Supreme Court reversed its own decision after addressing the violation of due process to the heirs of Wassihun et al. See Heirs of Wassihun et al. vs. Agency for Government Houses, decision of the Cassation division of the Supreme Court file number 43511 v. 14 P.211.

43 See Proclamation No. 515/2007, Federal Civil Servants Proclamation Articles 69.

44 This principle is also called constitutional avoidance. See Carr (1970, p. 187).

45 Ashwander v. Tennesse Valley Authority 297 U.S. 288, 347 (1936) (Brandeis, J., concurring) see also Rescue Army v. Municipal Court of Los Angles 331 Us 549, 569 (1947); Siler v. Louseville and Rashville R. R. Co. 213 US 175, 191, 1901; Department of Commerce v. House of Representatives 525, US, 316, 344 1999; Clinton v. Jones, 520 U.S. 681, 690, n.11 (1997).

46 See Kommers and Miller (2012, pp. 13, 34).

47 See, for example, Mamite Seble vs. Mulu Gurmu decision of the HoF, Sene 18, 2007 E.C. (25 June 2015); Kelebe Tesfa vs. Ayelegn Derbew, decision of the HoF Sene 18, 2007 E.C. (25 June 2015); Halima Mohamed vs. Adem Abdi, decision of the HoF, Sene 18, 2007 E.C. (25 June 2015); Wedere Tachbele vs. Like Gurmu, decision of the HoF, Sene 18, 2007 E.C. (25 June 2015). All cases unpublished and on file with the author.

48 It is also possible that the Chief Justice and his deputy will review a case submitted to the CCI which they already made as judges of the Federal Supreme Court. Thus the issue of conflict of interest also applies to both judges. Ironically both judges serve as chair and deputy chair of the CCI.

49 CUD v. PM Meles Zenawi, Decision of the CCI rendered on 14 June 2005.

50 CCI proclamation to Re-Enact for the Strengthening and Specifying the Powers and Duties of the CCI of the Federal Democratic Republic of Ethiopia, Proclamation No. 798/2013, Federal Negarit Gazeta 19th Year No. 65, Addis Ababa, 30 August 2013.

51 See Tesfaye (2008, pp. 128–144); see also Mgbako et al. (2008, p. 278).

52 See Tesfaye (2008); see Mgbako et al. (2008, p. 278).

53 Chief Justice John Marshall stated ‘Let’s not forget that it is the constitution that we are expounding  … ’ in McCulloch vs. Maryland 17 U.S. (4 Wheat.) 316, 407 (1819).

54 Griffin (1996, p. 13).

55 It is also called the ‘weak form of judicial review.’ See Hogg and Allison (1997).

56 Wolfe (2004).

57 Campbell et al. (2006, p. 4).

58 The legislative body is mandated under section 33 of the 1982 Bill of Rights (otherwise known as the notwithstanding clause) to override judicial nullification, which is rarely used. Vander Schyff (2010, p. 182).

59 Manfredi and Kelly (1999, p. 250).

60 Campbell et al. (2006, p. 241).

61 Tushnet (2014).