By Ashenafi Tsegaye
“Legitimacy is critically obtained or lost during the process of drafting and adopting the constitution”
An array of hope has been shown on majority of Ethiopians following the coming into power of Prime minister Abiy Ahamed (PHD). The prime minster has managed to get the hearts and minds of the people, intellectuals, activists, and even the opposition parties. Issues that have been considered taboos to raise and ask were taken off their veil, and countable promising changes has crossed the Ethiopian cloud. One of the reasons which has attracted the attention of Ethiopian political community was the Abiy’s promise to undertake ‘real election for the first time in history’.
However, no one needs a reminder that one of persistent and fundamental questions by Ethiopian political community against the EPRDF’s regime was the FDRE constitution, one of the critics being its legitimacy. So the question goes; Can election or a ‘reform’ of whatever kind solve the questions against the very legitimacy of the constitution? Is participation in election tantamount to legitimizing the constitution? In fact, many other questions follow. In an attempt to answering these and related questions, I will spare fair space to rebuilt my initial thesis; the fact that the constitution is illegitimate at the very beginning.
Conceptualizing Constitutional Legitimacy
Constitution can briefly considered as a political document the serves to limit the power of the government, protect the rights of individuals and groups pursuant to the principles enshrined within it. It is vital to the effectiveness of any legal system and stability of a given state. However, a constitution can serves these purpose only if it is legitimate. Constitutional legitimacy is related with a feature entrenched in a system of belief, the acceptance that an exercise in power is justified and therefore authorized, either implicitly or explicitly, by society at large. The point is that a constitution must secure the hearts and minds of the governed. Its legitimacy determines the durability and effectiveness of any constitution.
There is a universal consensus that the legitimacy of subordinate laws and institutions emanate from a constitution. But, where does a constitution itself gets it legitimacy? In answering this question, Andrew Harding states that “legitimacy of the constitution necessarily requires an extra-constitutional, or an unconstitutional process….that the constitution cannot effectively give birth to itself” (Harding, 2006). This implies that the source of legitimacy of constitution is extra-constitutional. This extra-constitutional legitimacy is “obtained through a combination of sources driven by the specific contextual underpinnings of society” (Wiseman, 2006). But, it should be noted that constitutional legitimacy cannot be presumed and establishing this extra-constitutional legitimacy is a necessary pre-condition to the success and sustainability of a constitution. I argue that establishing the legitimacy of a given constitution important than the substantive provisions within it. This is because a legitimate constitution with poor substantive provisions may endure longer than illegitimate constitutions with novel provisions.
Max weber has summarized three sources from which a constitution can get its legitimacy which include charismatic, traditional authority, and rational-legal authority (Weber, 1946). Charismatic source of constitutional legitimacy is attributed to an individual’s perceived exceptional personal or supernatural characteristics. The point is that the views or actions of this special individual should be respected as the people accord special status to this individual. The constitution of Thailand and Japan can be mentioned in this regard in which the king and the Emperor are considered special individuals, respectively. Traditional authority, on the other hand, legitimize the constitution when it incorporates the tradition or custom of the society. Finally, a constitution can gets its legitimacy from rational-legal authority. This can be considered as the modern source of legitimacy of the constitution. One of conventional methods of this approach is referendum.
As to the timing, legitimacy is obtained or lost during the process of drafting and adopting the constitution. This is related with constitutional making processes of preparation, drafting, public consultation and adoption. But, the question is how these processes of constitutional making can be ensured? Jennifer Widner has examined this question and come to the conclusion that for the constitution to be legitimate at the stage of its making, it should passes through five basic rules; Limit the appearance and participation of the incumbent; provide multiple opportunities for public participation; choose procedural rules that foster compromise; focus on the future; and adopt clear rules of procedure in advance (Widner, 2015).
The FDRE Constitution in Focus
Having considered how constitutional legitimacy can be ensured, examining the legitimacy of the FDRE constitution appears simple as such. No body denies that there is a question as to the legitimacy of the FDRE constitution as of the date of its conception to this day. So, can the legitimacy of the this constitution be proved using the three source of constitutional legitimacy? I would say no. First, the constitution is clearly not referring to charismatic individual as such. Second, there is no evidence as to the inclusion of any Ethiopian traditions or custom as such. The recognition of the customs and traditions cannot be considered as the legitimacy source though. This lead us to examining the third source of constitutional legitimacy- Rational-legal authority.
As noted above the constitution is said to be legitimized through rationality or legality when the people consented to and their willingness is effectively incorporated. Conventional ways of ensuring constitutional legitimacy through rationality is through referendum or any participatory ways in which the public effectively participate from the initial stage of preparation to ratification. Tested against this understanding, I would say that the constitutional making process of the FDRE constitution effectively failed.
To highlight the processes behind this constitution, it can be concluded that the constitution is a verbatim copy of the TPLF’s political program. In his publication, Prof. Merera Gudina (although he appears to think otherwise in recent time), a prominent Ethiopian political figure, state ‘Being the head of the EPRDF, the TPL was able to impose its own views on the EPRDF itself, on the constitution, and a country (Gudina, 1994). Likewise, Young has also submitted the same views stating “Every constitution is a cultural product and, in the Ethiopian context, it echoes the TPLF’s ethno-national ideology (Young, 1996). In addition to the authors, political parties in aftermath of the constitution held the same view. Kinijit, the effective opposition party and challenge to the EPRDF, clarified how illegitimate the constitution was at the very beginning stating “The existing constitution was drafted, approved and imposed on the people by a single party, without the participation and discussion of all groups of the society. The constitution, though wrapped up in a list of insincere human rights items, is in effect a copy of the political program of the ruling party” (Kinijit, 2006).
Well, I understand that these evidences might not be accepted by blind supporters of the constitution. However, luckily enough the illegitimacy of the constitution has been proved by those who participated in the constitutional making process itself. One of these was Dr. Negaso Gidada. In his interview with Addis standard, he has amplified how not participatory the constitutional process was to the majority of the public. In answering the question of how participatory the process was, Negaso replied “That is one of the major points where, looking back in retrospect, I criticize myself. We didn’t think properly. We knew that there was no proper atmosphere where different parties could organize meetings with their community members to discuss on the draft constitution before it became final. That was one of the biggest shortcomings in the process of the making of our constitution” (Lemma, 2016). I don’t think additional evidence is required than this.
The FDRE constitutional making also fails as its very procedures was not participatory. In this regard, Negaso states “The Constitutional Assembly, (I think we were 443), only discussed on the articles. It didn’t deliberate on the procedure of the constitution making. That was already pre-decided by the Transitional Parliament which decided whether it was enough to be accepted as a constitution”. In my opinion, no one can be authentic enough than the members and leaders of the process itself such as Negaso to prove how non-participatory the process was. Let alone to deny the very clear things, I don’t think the legitimacy of the constitution should be subject to questions at all. The very existence of legitimate and reasonable questions is enough to shadow its legitimacy.
Elections neither in aftermath of the constitution nor the forthcoming cannot be genuine sources of constitutional legitimacy due to the simple reason that there have never been a compromise on the constitution from the ruling party, and the prosperity party ha also expressed its genuine commitment to it. The Ethiopian people has not been given a chance to vote over the constitution ever.
Common mischiefs to legitimize the illegitimate
Despite persistent critics against the legitimacy of the constitution, the EPRDF and now, the Prosperity Party, have been assiduously trying to prove the legitimacy of the constitution using several grounds, which I call them are mischiefs. Some of them are discussed as follows.
- Fictious consent of “the nation, nationalities and peoples”
This is one of the main ground that the EPRDF and the Prosperity Party would tell to prove the legitimacy of the FDRE constitution. In fact, it is what the constitution itself says. The constitution in its very preamble states “ we the nation, nationalities and peoples of Ethiopia…..Have therefore adopted …this constitution through representatives we have duly elected…”. Based on this assertion, the common rhetoric is that with this preambular declaration the ‘nations, nationalities and peoples’ had manifested their consent to the adoption of the constitution. I aptly deny that the conditions needed to make that claim valid as to this Constitution existed at the time it was adopted or ever could exist. I would say it even applies a standard of consent that no constitution can meet, and simply allows others to substitute their own fictious assertions.
First of all, the alleged ‘nations, nationalities and people’ were never been in a position that would warrant that assertion in the preamble. During the constitutional making, no ‘nation, nationalities and people’ could be considered aware and in capacity to give such consent. Secondly, those who participated in the process hardly represent the people at all. No one deny that some ethno-nationalist political parties have participated. However, almost all of them were self-proclaimed parties, and none of them secured the consent of the ‘nation’ they alleged to represent. Finally, no one can dare to deny that not even all ‘nation and nationalities’ were at least theoretically represented by self-proclaimed political parties. Therefore, it sounds dubious to legitimize the constitution by referring to this unwarranted preambular statement.
The next logical conclusion is that the ‘nation, nationalities and peoples’ who didn’t participate in the process of constitutional making do not have legal and moral duty to observe it. An otherwise stand should proof that they have genuinely agreed to.
- Participation in Election and enjoying the benefits within the constitution
This is another rhetoric by which the government tries to push those who question the legitimacy of the constitution forfeits their stand. The logic is that the participation of individuals or political parties in election implies that they have accepted the constitution. The same is true if individuals or parties enjoy the rights enshrined under the constitution. In fact, this statement has recently raised by Prime minister Abiy Ahamed in his discussion with political parties. However, I argue that the fact that individuals or political parties participate in election or enjoy the rights enshrined under the constitution can in no ways implies the legitimacy of the constitution. This is because, this assertion will lead us to think that the constitution is legitimate, not because of the consent of the governed, but because the people enjoy its benefits. Enjoying the benefits can in no way implies the consent that warrants legitimacy.
The point is that constitutional legitimacy should be explicit, not even implied. Any attempt to find and imply the non-existent consent while the people are expressing the otherwise is mere rhetoric. Individuals or political parties might not even have other choice, and unless one can somehow refuse a benefit that is thrust upon him or her, it is not at all clear that one is obligated to pay for it in obedience or guarantees not to question the constitution. Neither residence within the country’s territory implies the consent to the constitution for that matter.
In fact, any attempt to legitimize the constitution based on the participation in election and enjoyment of the rights enshrined under the constitution would automatically fail as the constitution get or loose its legitimacy at the stage of drafting and adoption.
The ways forward
Together with its contents, the legitimacy of the constitution has been contested. This calls for a genuine solution in which the ultimate decision should be that of the public at large. In my opinion, if any one believes that the constitution is the result of genuine consent of the people there is no reason to scare any mechanisms that give the public a chance to approve or disprove it. The constitution can endure in stable way if and only if it capture the hearts and minds of the public. The fact that it has survived for more than two decades doesn’t implies that it is fully accepted either. A single ‘nation’ who wasn’t participant is enough to question the constitution, and a constitution is not something one ‘nation’ or part of people should be governed by just because it was approved by the others. Rather, it needs to get the consent of all concerned individuals or groups.
I don’t think the controversies on the content of the constitution can be rectified by amendment as well. I didn’t find it rational to resort to amendment while the very legitimacy of the constitution is challenged. Individuals and groups who never participated in the process of its making shouldn’t involve into the intricacies of constitutional amendment. Moreover, article 104 and 105 of the constitution make the option of amendment unattainable to incorporates the diverse interest of the public. Hence, in my opinion, the viable way is to give the option to vote on the constitution by any mechanism feasible such as referendum. Considering the situation in which the country is, referendum can be undertaken following the upcoming election. However, the upcoming election should be taken neither as if it can solve every problem once and for all nor as the act of legitimizing the constitution.
Gudina, M. (1994). The new directions of Ethiopian Politics: democritisation in a ulti-ethnic society. Red Sea Press.
Harding, A. (2006). Dynamics and Problems of Constitution-Making in Asia and Beyond.
Kinijit. (2006). Kinijit Manifesto.
Lemma, T. (2016, March 11). ETHIOPIA’S CONSTITUTION: CAN IT STAND THE TEST OF TIME? Retrieved from Addis Standard: http://addisstandard.com/ethiopias-constitution-can-it-stand-the-test-of-time/
Weber, M. (1946). Politics as a Vocation. In H. Garth, & W. Mills, Essays in Sociology (pp. 26-45). New York.
Widner, J. (2015). Five Rules of Constitution Making. U.S. Institute of Peace.
Wiseman, P. (2006). Thai Urbanites denounce ‘democratic dictatorship. Retrieved from USA Today.
Young, J. (1996). Ethnicity and power in Ethiopia. In Review of African Political Economy (pp. 531-542).