By Tecola W. Hagos
“The thing that hath been, it is that which shall be; and that which is done is that which shall be done: and there is no new thing under the sun.” Ecclesiasts 1:9, King James Bible
One must revisit old ideas often for the seeds for new ideas and future ideas may be embedded in such old even ancient ideas. I am writing thus, for I am thinking of the time tested almost apocryphal statement from Ecclesiasts 1:9: “There is no new thing under the Sun.” Indeed, that maybe the case if we think of time as an eternal present/now. If not, I hold the opposite that nothing is eternally set, but in flux and improvised. I cannot accept that I am helpless and fated to a predetermined end. Without such understanding that I have some personal role to play in mapping out my own life and also in affecting social norms and processes in concert with others in routing or channeling society for/to some communal destiny, it would be meaningless to be engaged in political or economic discourse.
With the goal of effecting meaningful change in the political and economic life of Ethiopia, I have reassessed how we can use the 1995 Constitution of the Federal Democratic Republic of Ethiopia to that end. In this article, my focus is the political power distribution between the Federal and the States/Kilils in the federal structure as constituted by the 1995 Constitution of Ethiopia—a tool that can be used for advancing individual human, political, and democratic rights. I am assuming that most Diaspora Ethiopians have read the 1995 Constitution if not for anything just to be conversant with some degree of relevance on the concepts and goals of that Constitution.
Obviously, fundamental change in the structure of the Ethiopian State (including the social and economic life of Ethiopia) is long overdue. One serious consideration that Ethiopians must decide on, sooner or later, is whether the fundamental change we all desire for should be evolutionary or revolutionary. The Ethiopian Diaspora politicians, in general, seem to favor revolutionary change, which is a very serious error in judgment, for any revolutionary change at this stage will result in catastrophic civil war that will make Somali’s civil war look like a child’s play.
II.State/kilil governments and Federalism:
Despite the fact that I am thoroughly for a unitary political structure for Ethiopia, I believe that it would be a mistake to think of “federalism” as a new concept or recent political structure for Ethiopia. In fact, the last five hundred years of Ethiopian history is marked by the constant balancing struggle between centralized power and defused power that was at one point graphically depicted in the history of the Zemene Mesafinte for about one hundred years [1760 -1870]. During that tumultuous period, the Ethiopian central governmental power was totally undermined and regional powers/warlords were in control of their respective regions. But all vied to dominate and ultimately achieve the status of the old order—Emperor.
Essentially, Ethiopia throughout its history from the time of the Zagwe Dynasty to date has been under some form of federal structure divided between Hagere Mengist, where the king or Emperor has direct control, and Medre Gebre, where different local leaders have almost autonomous administrative power and pay tribute to the King or Emperor in power. [See for such geographic designations Getatchew Haile, YEABA BAHRIY DERSETOCH,(2002) pages 106-7 n8.] I think of such structure as having the basic elements of a “federal” political structure. In other words, although within our contemporary time of reference we were subjected to Haile Selassie’s and the Derge’s centralization effort, we Ethiopians are used to regional and localized power and central government power throughout the two hundred years in our immediate past before the time of Haile Selassie.
The perception of modern Ethiopia from a single trajectory point imbedded in the past would only give us a partial and often grossly distorted picture of Ethiopia. The best approach is to acknowledge the fact of several narratives taken together that would probably give us a clearer picture of our shared history as a nation than would be the case with localized narrations. However, we must guard against the temptation of drawing parallels between recent events and past activities. For example, consider the totally inappropriate analogy drawn between the TPLF struggle of liberation against the genocidal Derg regime before 1991 with the raiders of medieval time [BAHRE HASSAB, page 246] like the Gala/Oromo insurrections into Agew, Amhara, Enarya et cetera territories during and after the time of Gragn Mohammad’s destructive occupation of twelve years
Many scholars have characterized the reign of Emperor Haile Selassie as the era of the hegemonic centralization of state power, which effort, in principle, had it been done properly is to my liking. In a way, the EPRDF does reflect Ecclesiasts 1:9 perception of history. In an effort to maintain national territorial integrity, especially in States with ethnic diversity and long history of struggle for dominance and counter resistance against such effort, federalist structure is most sought after. However, federalism in itself does not solve the problem of diversity, it merely moves the goal-post a little closer to the public. In fact, some scholars including our own, are aware of the many forms of “federalism” that can manifest in ethnic based federal structures as opposed to administrative territorial federal structure.
“The federal arrangements that exist in the world today fall under either of the two categories. Countries such as Nigeria, India and former USSR are known to have a federal arrangement based on ethnic principle. While others like USA, Germany and Brazil are known to have a territorial basis of arrangement.” [Abate Nikodimos Alemayehu, ETHNIC FEDERALISM IN ETHIOPIA: CHALLENGES AND OPPORTUNITIES, (2004) 11.]
However, such distinction has to be understood not as fundamental but structural in the sense of reading the symptom with the disease.
The fundamental structure of federalism can be divided into 1) constitutive: where different states/nations/nationalities create a new state by coming together to form the (federal) state, or 2) fragmentative: where a unitary state is broken up in order to maintain it as a state and save it from disappearing altogether restraining each fragment becoming separated as an independent state. The latter is often based on ethnic/language identity for its federalism. Prof Edmond Keller summarized for us the form of basic structure I pointed out here above.
“There are various ways in which federal systems come into being. Alfred Stepan building on the seminal work of William Riker, identified two main patterns: 1) the coming together federations, and, 2) holding together federations. Coming together federation emerge when sovereign states for security purposes and/or purposes of government efficiency decide voluntarily to form a federal system. Holding together federations are the outgrowth of a consensual parliamentary decision to preserve a unitary state by creating a multi-ethnic federal system. This is most often done to avoid or manage diversive ethnic, regional, or other types of group conflict within the party.” Keller, Edmond J. “Ethnic federalism, fiscal reform, development and democracy in Ethiopia.” (5) African Journal of Political Science 7.1 (2002): 21-50.
Thus, one can surmise the ethnic federalism of Ethiopia seems more in line with the “holding together federation” system with the propensity of the member states/kilils toward full secession and independence. Having Article 39 would only accelerate the process of the dismantling of Ethiopia into several much less viable independent states.
III. State Structure [Arts 45-49] and Division of Power [Arts 50-52]
In terms of nuance and significance, the Amharic version of the 1995 Constitution is a quite different read than the English version. Thus, my advice for all who can read and understand Amharic is to read the Amharic version along the English version of the Constitution. In some of its articles it seems to reinforce the unitary Ethiopian State. However, it does have also in limited number of articles anti-unitary enhanced vocabulary, for example, the word “State” is a translation of the Amharic word “Kilil” that has a much intense meaning and negative connotation adverse to political unity.
The Preamble of the 1995 Constitution clearly states that the goals and beliefs of the Nations, Nationalities, and Peoples of Ethiopia is to be carried out by the provisions of the Constitution. Articles 45 to 52 must be read carefully in conjunction with the Preamble and the Fundamental Principles of the Constitution in Chapter Two. Article 8 states that all sovereign power resides in the Nations, Nationalities, and Peoples of Ethiopia. Such sovereign power must not be confused with ownership of property such as land, it is rather a political centering of national State power. The Preamble and the Fundamental Principles along with those articles identify for us the basic or atomic constitutive parts and scope of the basis of state power. I am of the opinion that the political parties in power, the opposition, the Diaspora politicians, and the Ethiopian people in general have as yet to see these constitutional provisions in far different perspective than what we all had presumed these provisions are stating. None of these articles provide for or sanction exclusive rights on land to any one particular nation, nationality or people to the exclusion of some ethnic group. They simply declare that States/Kilils have common ownership in trust for the people of Ethiopia and not for any particular group, nation, or nationality.
Article 52 (2) (d) states that one of the function of the State/Kilil is “[t]o administer land and other natural resource in accordance with Federal laws.” This is the only provision that empowers the States/Kilils on questions of land, and even then it is an administrative role conditioned on observing Federal law. And such Federal law cannot be construed in such a way that it abrogates the fundamental rights of individual Ethiopians. The right to property as inscribed in Article 40 is considered as part of the democratic right of all citizens without any form of exclusivity to any one Ethiopian citizen. Article 40 is one of those articles that should be read very carefully. The one significant subsection of this Article 40 is its subsection (4) “The right to ownership of rural and urban land, as well as of all natural resources, is exclusively vested in the State and in the Public. Land is a common of the Nations, Nationalities and Peoples of Ethiopia and shall not be subject to sale or to other means of exchange.” The reference to the “State” is not the same as “Kilil” but is translated in the Amharic version as “Mengist” i.e. the Government of the State of Ethiopia. When one reads Article 40 cum Article 52, it is impossible to read into this 1995 Constitution any of the claims of exclusive rights based on membership in any ethnic group.
The tragedy of the last twenty years is that that the EPRDF was manipulated, coerced, blackmailed by a single individual and his close associates to carry out unconstitutional acts of ethnic cleansing dehumanizing Ethiopian citizens contrary to the very Constitution sponsored and incubated by EPRDF. It is also true, as I have repeatedly pointed out in many of my previous articles, the 1995 Constitution is very poorly drafted with all kinds of ambiguities that will require the genius of generations of legal experts to make it work properly. However, rather than throwing it away, and in order to avoid power struggle, maybe we should work on amending its most obnoxious articles starting with Article 39.
Coming back to the question of ownership of or having subsidiary rights over rural and urban land, I believe the Ethiopian courts have not been tested on such issues of exclusivity, ethnic preferences, evictions, ethnic cleansing et cetera. At any rate, any public/state ownership of land (territorial), which is clearly a common-ownership situation as stated in Article 40 cum Article 52 does not lead to automatic or any ethnic cleansing or restriction of settlement, or denial of residency or domicile of individuals from other ethnic background. Such concept of exclusivity does not exist in a fair reading of these constitutional provisions. The Amharic version with its Amharic language nuances makes it even more so.
IV.Using the 1995 Constitution to Promote Change by Using the Courts
I checked with some Ethiopian lawyers who have been in law practice in Addis Ababa for some time, if there had been cases filed in the Federal or State courts challenging the removal of large number of Ethiopians from Kilils. It is quite shocking to me to realize that we failed to use the obvious constitutional provisions to challenge ethnic cleansing all these years. The serious problem we all have is that we do not think purposefully and in practical pursuit of solutions to problems facing us. Mostly, it seems almost everybody involved in political struggle is reading from some script that is dated and often juvenile. My favorite and poignant statement by an individual who had understood in depth such problem is the one by Professor Yacob Hilemariam who used to say that we Ethiopians [politicians] walk about with little crowns in our pockets to be used in case we become kings. I do not mind people having ambitions or delusions of grandeur, but entire generations to a man?
There is no doubt that serious crimes were committed against hundreds of thousands of Ethiopians who were removed by force from areas where they were leading a settled life in several regions/parts of Ethiopia. The series of ethnic cleansing carried out during the Transitional Government of 1991 to 1995 was illegal even by the standard set by the Transitional Charter. And later after the 1995 Constitution formally established the State/Kilil system even more Ethiopians were forced from Oromo Kilil, Somali Kilil, Afar Kilil, Benshangul-Gumuz Kilil. There is not a single constitutional provision that clearly allowed such ethnic cleansing from any Kilil. In situations where executive decisions or legislative secondary laws affect the fundamental rights of Ethiopians, it must be pursuant to a clearly stated limiting Constitutional provision and not through some imaginative interpretation of Constitutional provisos that do not clearly state such limitations on existing fundamental rights.
At the very least, court processes and possible remedies were available even during the tyrannical administration period of Meles Zenawi and at this time too in challenging any form of executive action that limits the fundamental rights of citizens on the basis of ethnic identity. The Ethiopian Courts were not approached and not even a single time to stop such ethnic cleansing, rather the focus was on political agitation and demonstrations—a far less effective method of political struggle. The Diaspora politicians in the United States are witnesses to the legal process in this country. None I know of advocated to use the Ethiopian Courts for safeguarding human and democratic rights of Ethiopian citizens. There were few instances where some political parties in Ethiopia had tried to use the Ethiopian Courts to get some injunctive relief and/or declaratory judgment on specific party organization conflicts. It has not worked that well in those limited instances. We must not be discouraged by temporary failures, for we need to focus on the prize.
Let us not undermine the power of courts. The American Courts changed both the social and political life in America for disfranchised and discriminated minorities through individual court decisions. The American Courts started out by declaring that the African slaves as “beings of an inferior order, and altogether unfit to associate with the white race, either in social or political relations, and so far inferior that they had no rights which the white man was bound to respect” in Dred Scott case, 1857, and so stated Chief Justice Taney writing for the majority. In that opinion, Dred Scott was excluded from the Declaration of Independence/the Constitution. After forty years the Court progressed to saying “separate but equal” in Plessy v. Ferguson case, 1896; finally, sixty years later, the Court acknowledged that separate treatment is unequal treatment implying the equality of all races in Brown v. Board of Education, 1954, and reversed Plessy v. Ferguson case. The process lasted for over a century and is still going on. Nevertheless, in this long saga, we witnessed some landmark achievements in the decisions of the United States Courts affecting the political and social life of the United States, such as putting a black man as President of the United States. This form of evolutionary change should be acknowledged by a number of Diaspora Ethiopians and others who espouse revolutionary changes to reconsider their bellicose attitudes.
I know that Ethiopian courts are not to the same extent as independent from the clutches of the executive power as courts are free here in the United States. However, we must understand that even the Courts by themselves in the United States would not have been successful in ensuring individual rights without the presence of the vigorous American press and media. There is no comparable vigorous press or media in Ethiopia due to the Ethiopian Government’s suppression of freedom of speech and the press.
I just read the Press Release of the Melaw Amara political party on the recent disaster in Ambo and other grievances in Amhara and Oromo Kilils. The Press Release is short and to the point. Such political statement is appropriate response to the Ethiopian Government’s repressive measures against the Ambo demonstrators. One grievances pointed out in the Press Release about the mistreatment of Ethiopian citizens and the evacuation of individuals by force is premised on the absence of fair and equal treatment of all in similar circumstances. Nothing incenses Ethiopians as much as unequal treatment of individuals in the same situation. I believe what the political organization is rightfully demanding in its Press Release for equal treatment is not obstructionist, anti-development, or anti proper urban planning. The Ethiopian Government is being challenged on a principle of law and good governance. The next step is to file a case on behalf of the Ethiopians who are affected by the eviction.
There was also another declaratory statement from Andenet Party challenging the statuesque by pointing out the numerous repressive measures taken by the current Ethiopian Government. These pronouncements are fine with me, but I want to see practical actions such as using the Courts by bringing real cases in controversy and there by formally entering legal actions into the record. One need not be satisfied by demonstrating grievances, but need to follow through with practical action such as getting cases of individuals or group of individuals through the court system.
I urge the Ethiopian legal associations (bars) in Ethiopia to take up such cases on pro bono basis as a matter of civic duty. It is also advisable to establish a form of corporate structure for such legal team for efficiency and defense against any governmental interference. The Ethiopian Diaspora can play key role in this type of structured protest by setting a legal fund that could be used to finance such law suits against governmental trespasses. Other activities of demonstrations and political agitation will continue as well. At any rate, a word of caution: do not destroy a political or economic system unless you have something to replace it with.
Conclusion: Evolution and not Revolution
It is true that incredible growth in education, health care, road construction, dam buildings et cetera in Ethiopia for the last ten years is a matter of public record; such growth is being registered by international observers in several respectable publications. Some friends who visited Addis Ababa, Awasa and a few other regional urban centers have told me that the change from a decade ago is beyond comprehension. What these visitors emphasized to me was not just only the obvious physical construction boom but also the enormous changes in attitude of the many young people they talked to and observed in the daily activities of young Ethiopians who seem to have enormous energy, optimism, and “can do” self-confidence.
However, no one can deny the fact that Ethiopia is under a government system that is far from being democratic, respectful of individual rights, or free from corruption. As a matter of fact, we can draw a long laundry list of violations of both human and democratic rights of Ethiopians by the Government of Ethiopia. At times such violations defy any rational and are difficult to understand or explain. Those same friends who visited Addis et cetera have also informed me about the appalling poverty and the great suffering of hundreds of thousands of people, often families with children, that they witnessed especially in Addis Ababa despite the fact billions of birr is spent in that particular city.
I just wonder how far civil unrest and public demonstrations can change the existing political situation in Ethiopia. May be we should consider alternative method of struggle in addition to demonstrations. I have suggested earlier filing cases in the courts of Ethiopia on behalf of aggrieved Ethiopians for any number of violations committed by the Ethiopian Government. Consider the recent conviction of a Red Terror participant by a United States Court
The other day, I was reading Prof Gary Gerstle article “The Resilient Power of the States Across the Long Nineteenth Century: An Inquiry into a Pattern of American Governance,” a highly illuminating work for our discourse. Despite the fact that the world seems to be run by stupidity and irrational pursuit of power and dominance [main theme of the scholar cited herein]. Reading such articles reminds me that even the United States is not that safe from reversal of history collapsing back into colonial racist society of its origin. I believe the pillars that are holding up society and saving it from inertial collapse are the silent working people, teachers and parents, and religious leaders. This means there is room for rational discourse.
This brief essay is meant to open discourse on specific topics, such as the topic of the use of the Ethiopian Courts to effect change, the topic of the necessity of revisiting the 1995 Constitution (Amharic version), the topic of reconsidering the concepts of federalism and unitary-states. By no means this essay can it be definitive on any level. We also see that our country/Ethiopia seems to be rudderless, for we are often confronted with contradictory messages from different Government officials. There seem to be several political power bases, having internal struggles, and each acting on its own with no coordination. The recent demonstration of Ambo University students resulting in massive property damage and loss of life (due to overreaction of the Government’s security forces) and the clumsy explanations offered by the government officials in the aftermath clearly show that there is a major disconnect between the top leadership and the state administrators.
LONG LIVE ETHIOPIA IN ALL YOUR GREAT GLORY.
Tecola W. Hagos
May 30, 2014