Monday, February 11, 2013

NEVIS REVIEW No 10, Section II : Ref # 10.2

Section II 
Ref # 10.2
Feb 11, 2013
Federalism and Constitutionalism in the Horn of Africa
By John Markakis

( Ed's note-The following is an extract from the above mentioned article that starts with constitutionalism in general, followed by a larger portion taken from the section dealing with the specific case of Ethiopian constitutionalism)


Constitutionalism was born in the struggle of the rising bourgeoisie to limit the power of the monarchy in the modern political history of Europe. This was a long and bloody affair; civil wars were fought and crowned heads rolled. When the
bourgeoisie finally prevailed, the ‘absolute monarchy’ gave way to the ‘constitutional monarchy;’ something of a contradiction in terms, the latter still survives in that continent. The quintessence of constitutionalism in the Western tradition, therefore, is the prescribed limitation of state power. Like many political
concepts – freedom, democracy, justice, equality – constitutionalism is an ideal much praised in theory yet seldom fully realised in practice.

In the Western tradition, conflict is the midwife of constitutionalism, and its genesis is a formal arrangement for power-sharing agreed by the conflict’s winners. Nations that wrest their independence from alien rule need this arrangement, and a constitution is the indispensable accessory of a newly born state. Civil conflict within a state signals the breakdown of a prior arrangement and the need for its replacement when the conflict is settled. Hence, constitution-making follows the end of foreign and civil wars. France with its five republican constitutions is a good example.

A distinction must be made between constitutions and constitutionalism; between documents of transient and uncertain validity and a principle of universal value. Constitutions may or may not constraint the exercise of state power, and the
presence of a constitution does not guarantee a constitutional form of state rule.Constitutionalism as the principle of constraining state power and regulating its exercise through law comes into its own when a balance of power between contending social forces is the result of social conflict. More often than not, the state is both the object of, and a party to, the conflict, and its power is used without restraint during its course. It is only when a balance of power results that a consensus is reached, and the power of the state is curtailed to avoid it becoming again the object of conflict. In Western Europe, constitutionalism is the final product of a series of historic struggles for state power; the nobility versus the monarchy, the aristocracy versus the bourgeoisie, the bourgeoisie versus the working class.

Because a potent source of conflict is the exclusion of sectors of society from access to state power, constitutionalism ordains representation in the political system and provides the institutional framework through which representation is achieved. Constitutionalism therefore is closely related to representative democracy, itself the product of a balance of power between social forces mentioned previously. Striking this balance is a rare achievement only a few countries in Europe were fortunate to realise until recently. The much vaunted democratisation of the rest of the continent – south, central, east - dates only since the end of the Second World War, and has yet to sink deep roots everywhere.

Because it is born of conflict, constitutionalism also entails a corps of procedures through which conflicting social interests can be negotiated, disputes resolved and conflict avoided. All the institutions of government are involved in this process, especially the judiciary whose independence is a hallowed constitutionalist principle. The procedures are based on laws that define the jurisdiction and determine the authority of all state institutions. Further limits on the power of the state are drawn by provisions that detail the rights of citizens upon which the state cannot trespass.

Because constitutional government is based on the rule of law, it requires a solid foundation of legitimacy in order to prove stable and sustainable. Max Weber defined three types of ruler legitimacy. The traditional type is the sort Ethiopian emperors, including the last one, enjoyed. The charismatic type is the sort the first African nationalist leaders like Kwame Nkrumah and Julius Nyerere acquired, and the legal-constitutional type is the subject here. It takes time, generations, and a lengthy period of successful governance to build this foundation, and for the main sectors of society to accept their interests are best served under this system than any attempt to change it.
Ethiopia has a lead among states in the Horn of Africa in constitutionalist experimentation, having adopted its first constitution in 1931, less than a year after Haile Selassie’s coronation as Emperor. This was a gesture from above, ‘unasked and of Our own free will,’ as the Emperor put it, intended to improve the country’s international image, and also to provide the legal framework for the centralisation of the state and the taming of the nobility. More than half of the articles in the constitution were devoted to describing the powers of the Emperor.
A brief mention was made of citizens’ rights, and the chief drafter of the Constitution,Takla Hawariat, promised: ‘henceforth, the Law will protect the weak and the poor against the powerful upstart.’

The 1931 constitution was revised in 1955, on the twenty fifth anniversary of Haile Selassie’s coronation. Two basic motives for revision were the same ones that had inspired the constitutional experiment of 1931; namely concern for the country’s image abroad and further centralisation of state power in the hands of the monarch. The sketchy provisions of the older document regarding the powers and prerogatives of the Emperor were greatly expanded and elaborated in the new document. An additional motive was to settle the status of Eritrea which had been linked in a federal union with Ethiopia since 1952. Remarkably, the 1995 Constitution made no mention at all of the union, but settled the issue in the very first article by proclaiming the ‘sovereignty and territory (of Ethiopia) are indivisible.’

Political correctness is not missing. Twenty nine articles are devoted to the rights and duties of the people, including, the freedom of (a non-existent) press, and of association in a state where not a single civic association was tolerated.

The façade of electoralism was not missing either. The 1931 document established two appointed advisory bodies, a Senate and a Chamber of Deputies, of which little was heard afterwards. The 1955 document made the latter an elected chamber, and the first election in the history of the country took place in 1957, and every four years subsequently until 1969. Given the fact that no political parties did not exist, it is not surprising that people took no interest at all in the electoral process.

Ethiopia’s third constitution was unveiled in 1985 by the military regime that had seized power in 1974. Its preparation was assigned to a team of academics and experienced civil servants working in the Institute for the Study of Nationalities,
who were instructed to study relevant documents in the socialist bloc, especially the federal models of Yugoslavia and the Soviet Union. After a long period of study and deliberation the team drafted a number of alternative schemes that were submitted to the regime’s leadership. As was the case with Haile Selassie, the military regime’s strongman, Mengistu Haile Mariam , saw to it that nothing was included that could possibly threaten his supremacy and approved the final draft.

The introduction of the federal concept is the only interesting aspect of this constitution. Pressed by its Soviet advisers to deal with the problem of nationality conflict in Ethiopia, the embattled regime made a half-hearted and insincere attempt to meet some of the demands raised by nationalist insurgents in Eritrea, Tigray, Oromia, Ogaden, Afar and elsewhere. Accordingly the 1985 Constitution divided the country into autonomous and self-governing regions. This was an obvious ploy recognised by the insurgents whose forces toppled the regime a few short years later.

Ethiopia’s current experiment with federalism is the third in a series. Unlike the timid and disingenuous gestures of the past, this was a radical reform intended to cut through the century-old tangled knot of iniquitous oppressive centre-periphery relations, and to restructure the state on a federal pattern based on equal, autonomous, ethnic constituent units. Largely unanticipated, this upending of the status quo was hurriedly implemented, following a brief but intensive period of publicity to mobilise support. No doubt, speed was of the essence given the unsettled political conditions of the time. Nevertheless, it is fair to say that not many Ethiopians who live in the countryside have a clear notion of what federalism means, or had the opportunity to express an opinion on its merits. There was simply no time to form a national consensus on the legitimacy of the new political system. Lacking this foundation, it is no surprise that federalism in this country is the subjects of intense political controversy that often threatens to turn violent.

It should be noted at the outset that the theoretical foundations of this experiment lay not in the philosophy of constitutionalism that is rooted in western liberalism, but in the ideology of national self-determination as construed by Marxism. From this difference spring divergent interpretations: of democracy (liberal versus
popular); the state (unitary or plural); political rights (individual versus group); property rights (private versus collective); development theory (state-planned versus market-led); and a host of other thorny issues that divide the incumbent regime and its opponents and fuel an ongoing political debate.

Debate is essential for the evolution of this highly complex system of government planted in untried ground with little preparation. If it is to prove constructive, the terms of the debate must share a minimal consensus on its goal. However as it has unfolded to date, the debate has strayed away from federalism itself, to focus on the legitimacy of the regime which introduced it a dozen years ago and, by implication, the legitimacy of the federal system; proof that a consensus on the issue has yet to be reached in this country. This casts a shadow over the future of the federal scheme as it now stands, and raises the question whether it will prove more successful than its predecessors?

The answer to this question is of paramount importance. If the history of the region and of Ethiopia itself has anything to teach us, it is that the pressures to transform the iniquitous centre-periphery relationship cannot be defeated by force, nor deflected by political manipulation; methods that have been tried repeatedly in the past without effect. The cost to the countries involved has been disastrous in material and social terms; half a century has been wasted. Moreover, when the state has permanent resort to force to maintain its authority, all hope is lost for political stability and democratisation. Once force is adopted as the instrument of rule, it is applied indiscriminately in the centre as well as the periphery. The recurrence of military rule and of civilian regimes that depend on the military to keep them in power is a lesson proponents and opponents alike of federalism must take to heart. In debating the merits of this system as a constitutional solution to the civil conflicts that have plagued the region, they must be careful not to throw out the baby with the bathwater.