October 9, 2020
By Zemelak Ayitenew Ayele
While the House of Federation has stopped short of ordering military intervention, its latest moves in the dispute with Tigray are of questionable legality and efficacy.
In the latest development in an escalating dispute between the federal and Tigray governments, this week the upper house of parliament took three major decisions. First, the House of Federation ordered the federal government to cease all interactions with Tigray State Council and the cabinet, which it deems unconstitutional due to an “illegitimate regional election”. Second, it said federal fiscal transfers to the region would be suspended. And finally, in order to ensure the continued provision of basic public services, it said the federal government would deal directly with wereda, urban and kebele governments.
The discord between the Tigray People Liberation Front (TPLF) government and the federal administration, which is exclusively controlled by the Prosperity Party (PP), has been ongoing for more than two years due to disputes stemming primarily from the power struggle within the former ruling coalition. Mekele’s decision to hold elections on 9 September for its State Council in explicit defiance of federal authority severely exacerbated the situation.
Furthermore, as it argued the June parliament decision to extend all governments’ terms until elections delayed by COVID-19, Tigray decided that after 5 October (the date it assessed to be the end of the previous governments’ legal mandates), the federal Parliament and Council of Ministers had no legal authority, and that federal proclamations, directives, and regulations issued after that date would not be applicable in Tigray.
In recent months, Addis Ababa had attempted to prevent the autonomous regional vote. The House of Federation (HoF) Speaker Aden Farah first sent a letter on 30 June warning that the federal government would take any measure necessary, including military intervention, in order to avert the damage to the constitutional order the illegal election would bring. It later said the elections would have no legal effect. More recently, Speaker Aden said the federal authorities could install a transitional administration in Tigray.
Though the reasons given by the House of Federation to extend regional governments’ terms are less than convincing, Tigray’s decision to ignore that decision was not constitutionally justified. This is simply because, as the constitutional umpire, only the upper house can say what the constitution is or means—no matter how disagreeable or unconvincing its interpretation is to the rest of us. Tigray’s government certainly cannot unilaterally decide what the correct interpretation of the constitution is.
Yet now, the HoF has issued the three orders that are of questionable constitutionality and efficacy.
Although the federal government does not recognize Tigray’s government, it appears that the HoF is prepared to accept that Tigray will have what it deems an “unconstitutional” government for an undetermined period. Although military intervention would probably be catastrophic, and so is by no means advised, this does not make any legal sense: the constitution does not envisage periods of unconstitutional government. Instead, as the guardian of the constitutional order, HoF has the duty to ensure that the unconstitutional situation is resolved according to Article 14(1) of Proclamation 359(2003), which governs federal intervention in regional states.
The second HoF order for the federal government to directly interact with local authorities does not seem practicable since the regional government would attempt to prevent it and the local authorities are not likely to be willing to interact directly with the federal government, bypassing their regional bosses.
In addition, the federal system was deliberately designed so that the central government does not have direct contact with local government. During constitutional drafting, there was a debate on whether local government should be recognized as the third tier of government. The argument in favor of recognition was to prevent regional states from using them as their own administrative agents, rather than being a democratically accountable level of government close to the people.
However, as is the case in many federal dispensations, the constitutional recognition of local government was viewed as a zero-sum affair by regions for two major reasons: First, the constitutional recognition of local government would result in the diminution of the status of regional states as political units and reduction in the powers they could exercise and resources they could control and mobilize. Second, and most importantly, there was apprehension that the federal government would use constitutionally recognized local governments as backdoors to interfere in regional states and undermine their autonomy.
This was why the constitution’s framers attempted to strike a balance by requiring states to establish democratically constituted local governments that still operate within their exclusive regional competence. The HoF order therefore is exactly what the framers feared and attempted to prevent, and would set a dangerous precedent.
The final order, suspending federal budgetary support to Tigray, is against the spirit of federalism, as the transfer of revenue to regional states is an expression of ‘federal solidarity’. In any federal system the most lucrative sources of revenue are reserved for a federal government because it has a broader mandate than the regions, it is in charge of managing the national economy, it is required to maintain equity across the federation, and it is in a better position to manage revenues.
States are left with least lucrative sources of revenue. Implicit (sometimes explicit) in this arrangement is that the federal government has the duty to share the revenue it collects with the regions. In fact, the federal government is not assumed to have exclusive ownership over the revenue it collects; it is simply a custodian of funds that it co-owns with the states.
Hence, in some federal constitutions, not only is the central government required to share the revenue it collects with the regions, but also the minimum amount that it has to transfer is legally defined. Granted, Ethiopia’s constitution does not explicitly make such transfers federal obligation, but it is implicit in the system’s design. The HoF decision to simply suspend all federal revenue transfers is hence a violation of the constitutional compact.
Most importantly, as a mechanism of restoring constitutional order’, suspending federal transfers is ineffective. Instead, it would lead to a reduction in the delivery of basic services to the people, while undermining the principle of ‘federal solidarity’.
Although the constitution should be the framework for resolving the tensions, given the precarious political situation the country is in, it would be unwise and dangerous to insist on strict adherence, such as arguing that HoF should order federal intervention. We are not in normal times and we need to find creative ways that will help us get peacefully out of this quandary. Tigray should be prepared to work with the federal government, despite its divergent constitutional interpretation. The HoF or the federal government at large need to transcended specific constitutional provisions and appeal to broad principles in the constitutions to try and break this political deadlock.
Broad constitutional principles are there for a reason: they serve a purpose that specific provisions fail to help us achieve. It may well be that the three orders of the HoF are intended to avoid federal intervention into Tigray, which is commendable—although it should be noted that Tigray’s leaders have suggested any budget cuts would be tantamount to a declaration of war. Regardless, the upper house and the federal government could do more considering the unthinkable consequences of failing to peacefully resolve the dispute.
As the institution whose role it is to “promote the equality of the peoples of Ethiopia…and consolidate their unity”, the HoF should refrain from ordering the government from taking measures which divide us. Instead, it should seek ways to deescalate, and set us on the path to greater cohesion.