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Pre-election Ethiopian federal intervention in Tigray would have been more justified than post-election

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By Wondwossen Demissie Kassa

Abiy outfit

By intervening post-election, the federal government would be doing nothing to slow the spread of COVID-19, which was the official reason for delaying all polls.

In June, the House of Federation, in a controversial process, interpreted Ethiopia’s constitution to authorize the continuation of all incumbent governments across the federation beyond their constitutional term limits.

Tigray region opposed the postponements.

As a result, despite rejection and warnings by the National Electoral Board and the House of Federation (HoF), the region continued preparation for an election for its State Council.

Leaders of the Inter-Religious Council and Elders Consultative Forum of Ethiopia, International Crisis Group, and scholars have recommended peaceful settlement of the ongoing election related dispute between the Federal Government and Tigray Region. I subscribe to this suggestion.

However, as per Article 62(9) of Ethiopia’s constitution, federal intervention is due when a member state of the federation, in violation of this constitution, endangers the constitutional order.

Thus, if Tigray proceeds with its election, unless the central government tolerates endangering the constitutional order, some form of federal intervention is inevitable.

The federal government seems to have reserved federal intervention as a post-election alternative. Be it before or after election, federal intervention which, according to the law, might include deploying force by the federal government, would be highly destructive, rendering it perhaps more harmful than increased COVID-19 spread due to election activities in Tigray. This week, Tigray’s government sternly advised the HoF against intervening in its self-determination exercise ahead of a meeting of the upper house.

Regardless, if federal intervention is inevitable, pre-election intervention would have been more justified than post-election intervention.

This is because the very process of preparation for the election in defiance of the decision of the HoF contravenes the constitution. So, the ruling Tigray People’s Liberation Front (TPLF) and the government in Tigray are already in breach of the constitution, satisfying preconditions for federal intervention.

Furthermore, if the whole purpose of postponement of national and regional elections is to protect the public from COVID-19, this purpose would have been served by early intervention that stopped risky election-related activities.

Seen from this perspective, any post-election intervention would be too late to be justified.

In a meeting held on 29 July 2020, where Prime Minster Abiy Ahmed discussed current issues with representatives of political parties, one of the Tigrayan opposition leaders, Aregawi Berhe, worried by Tigray’s move, asked the Prime Minster about the federal government’s responsibility to stop Tigray’s ongoing election preparations.

The prime minster dismissed what the region is doing in the name of election as a drama that does not have any semblance of “election” in the proper sense of the term. But he told the participants that the federal government would not see a problem with “election” results if TPLF was re-elected. This is because, Abiy noted, the drama would not have the effect of contravening the HoF decision, which mandated TPLF to stay in power.

According to the prime minister, the federal government would see the regional election as problematic requiring the federal government’s attention only if it resulted in a new ruling party replacing the TPLF.

It is very likely that TPLF will win the election. However, that does not necessarily mean that the post-election regional government would be considered lawful by HoF.

First, as the number of parliamentary seats in the Tigray State Council has been increased by 20 percent through a recent constitutional amendment, the election will change the composition of that legislature.

Second, even if TPLF wins, there is a possibility for members of the incumbent council to be replaced by other members of TPLF. For these reasons the post-election regional law-making body would not be the same as the incumbent that the HoF ruled should remain in power.

Thus, even if we follow the prime minister’s outcome-oriented approach, federal intervention is unavoidable.

In the event that federal intervention would not be implemented immediately after the regional election in Tigray because TPLF, despite changes in the State Council, continues to be in power and the federal government prefers to live with this, that would not necessarily mean avoiding, but only postponing, federal intervention.

This is because according to the HoF decision, the postponed election is to be conducted both at federal and regional levels anytime where the pandemic sufficiently subsides. When that occurs, the National Electoral Board would resume its activities to conduct federal and regional elections, including in Tigray.

The federal government would be expected to ensure that elections would be conducted in Tigray not only because it does not recognize the impending election: there are also opposition parties, such as Arena, whose base is Tigray, that are not participating in the upcoming poll.

Furthermore, the National Movement of Amhara has already raised a separate challenge to the election in Tigray regarding disputed territories of the districts of Welkait, Humera, Tegede and Telemte (Amharic transliterations) in West Tigray and North West Tigray Zones, as well as the Raya-Akobo area in South Tigray Zone, claiming that it has interest to run for election in these territories. These parties have a legitimate demand for elections to be conducted in Tigray when health conditions allow and for them to participate.

While the federal government cannot ignore this demand for elections to be conducted in Tigray at the same time as the rest of the federation, as things stand, it would face strong resistance from Tigray. As far as the latter is concerned, the result of the impending poll would be valid for five years. Thus, Tigray is unlikely to cooperate with the National Electoral Board for a post-COVID election in the region.

This would result in a confrontation with the federal government that would be likely to trigger federal intervention.

The prime minister, in his  7 May video statement, noted “unconstitutional attempts to undertake illegal elections will result in harm to the country and the people.” In the same statement, he made it clear that “the government will be forced to take any measures to assure the safety of the people and the country”, apparently without waiting for the result of the election.

The prime minister’s former spokesperson Nigusu Tilahun later reiterated  that the federal government would enforce its election-postponement decision, implying action to prevent Tigray’s poll. Now, it appears too late for that.

The prime minister’s focus, in his recent statement, on whether the election in Tigray would result in replacing TPLF by another party therefore amounts to walking back his earlier position. More importantly, it loses sight of the core purpose of election postponement.  Officially, elections were postponed because the process would entail activities incompatible with slowing the spread of the virus.

Postponement of elections aims at preventing activities that catalyze the spread of the virus and go against the COVID-19-prompted state of emergency.

It follows that it is these activities associated with the election process that would increase the virus’ spread—not whether TPLF remains in power—that should be the primary federal concern. In theory, by reserving federal intervention as a post-election alternative, the people of Tigray would be the victim of the likely increased spread of the coronavirus.

Moreover, in the absence of border restrictions and quarantine system among inter-regional travellers, in due course, the impact of the virus could be felt nationwide. As such, the election in Tigray would have a national public health consequence that might end up in making postponement of elections in other parts of the country arguably pointless sacrifice of democratic rights.