“Those who can make you believe absurdities can make you commit atrocities.”— Voltaire
On November 29, 2012, Ethiopia’s Prime Minister, Hailemariam
Desalegn, conferred the rank of deputy prime minister, with the approval
of parliament, on Muktar Kedir, chief of staff at the Office of the
Prime Minister, and Debrestion Gebremichael, Ph.D., Minister of
Communications and Information Technology.
My aim in this essay is to examine the constitutionality of the
appointment of the two new Deputy Prime Ministers and critique the
claims so far made as to the constitutionality of these recent
appointments by Prime Minister Desalegn.
Since the announcement of the appointments, all manner of claims, if
not arguments, have been made in support of the constitutionality of two
additional Deputy Prime Ministers. What these claims and arguments
share in common is one thing – absurdity. As an example, I would like to
highlight the contribution of Tamrat Gebregiorgis, the managing editor
of Addis Fortune, who stated in an interview with the Voice of America
Amharic Service, that there existed a “precedent” for the constitutional
justification of the appointments. One can’t help but wonder whether
Gebregiorgis has the slightest idea what precedent means to the
constitutional scholar or what the role of the doctrine of stare decisis
is in the Ethiopian legal system. He also said that in the United
States, people can be appointed to be deputy bureau heads and yet
conferred the title of ambassador. Gebregiorgis’s contention does not
stop there.
He goes on to claim that it’s the “prerogative” of the Prime
Minister to appoint as many Deputy Prime Ministers as he wishes. How
did Gebregiorgis arrive at this constitutional wisdom that even
well-respected Ethiopian constitutional law scholars seem to lack?
However, one thing is crystal clear, and that is that the current
Ethiopian Constitution does not provide for multiple Deputy Prime
Ministers. Rather, the Constitution provides for a single, undivided,
post of the Deputy Prime Minister in the same way as it does for the
Prime Minister. The Prime Minister, moreover, does not have the
constitutional authority to create new ministerial posts or executive
offices. The Ethiopian Constitution provides the Prime Minister with the
authority to fill executive offices by appointment, with the approval
of the House of Peoples’ Representatives of the Ethiopian Parliament,
but the Constitution does not invest the Prime Minister with the power
to create new executive offices. This is evident even from a cursory
perusal of Articles 75 and 74(2) of the constitution. My reading of the
letters and spirit of the constitution is that the post of the Deputy
Prime Minister is as undivided and singular as that of the Prime
Minister. Given this textual reality, the recent appointments are
clearly unconstitutional. However, in Ethiopia, if the needs of the
executive come into conflict with the constitution, too bad for the
constitution.
Article 77 on the “Powers and Duties of the Council of Ministers”
also stipulates in section 2 that the Council of Ministers “shall decide
on the organizational structure of the ministries and of other
administrative agencies responsible to it and to the ministries. It
shall coordinate their activities and provide leadership.” As can be
gathered from this provision, the Council of Ministers has the
constitutional authority to “decide on the organizational structure of
the ministries”, and not the Prime Minister alone. Besides, what the
Council of Ministers can do is to pass a “decision”, not to issue a
proclamation as to the organizational structure of ministries. Even to
“decide on the organizational structure of ministries” does not mean to
create additional ministerial offices or posts only by a decision of the
Council of Ministers, which is to be issued in the form of regulations,
as opposed to proclamations.
Those constitutional powers are not invested with the Council of
Ministers, but with the House of Peoples’ Representatives, as is clear
from Article 76(3), which stipulates that “[i]n all its decisions, the
Council of Ministers is responsible to the House of Peoples’
Representatives.” Article 76(3) only states that the Executive has the
power to “decide” on the issue under consideration. This means that the
Council of Ministers must submit its decision on the organization of the
structure of the ministries to the House of Peoples’ Representatives
for approval. It is evident that Article 76 is about the power to change
the internal structure of existing ministries, but not about creating
additional ministerial posts. This can only be done first by amending
Article 75 of the Constitution that provides, in no uncertain terms, for
a singular and undivided office of the Deputy Prime Minister. Moreover,
even when approved by the House of Peoples’ Representatives, it has to
be issued in the form of a proclamation, not a regulation, to amend the
existing proclamation for the Definition of Powers and Duties of the
Executive Organs. Even such proclamations cannot amend the Constitution.
This is called the “hierarchy of laws”, which is part of the ABC’s in
legal training in any legal system at any law school.
An additional argument justifying the appointments of the two
additional deputy prime minister appointees is that they are not really
deputy prime ministers, even if they hold such a rank. This argument
also flies in the face of the reality on the ground. What do you call
these newly-appointed-only-in-rank-deputy-prime ministers? They are left
nameless, despite the fact that official sources have been referring to
them as “cluster-coordinators,” although nobody knows what the hell
that means.
This poses a very serious accountability issue. Accountability is a
cardinal constitutional principle and it saddens me to see that
defenders of the current appointments have missed its salience. Now the
question is who are the new deputy prime ministers accountable to, as
distinct from current Deputy Prime Minsiter Demeke Mekonnen, who is
constitutionally accountable to the Prime Minister. In other words, if
there’s only one Deputy Prime Minister in the person of Demeke Mekonnen,
then who are the additional two deputy prime ministers accountable to?
It is not possible for the new deputy prime ministers to be accountable
to Deputy Prime Minister Mekonnen, as he is only the first among equals
(primus inter pares). In addition, are the new deputy prime minister
going to be members of the Council of Ministers on par with Demeke
Mekonnen? Who is going to chair the meetings of the Council of Ministers
in the absence of the Prime Minister? Which of the additional deputy
prime ministers will chair the Council of Ministers in the absence of
both the Prime Minister and the constitutionally mandated Deputy Prime
Minister?
The current appointments have also not been envisioned in the
Constitution or in the Definition of Powers and Duties of the Executive
Organs of the Federal Democratic Republic of Ethiopia Proclamation No.
691/2010. In addition, whatever eventual division of executive powers
made among the three deputy prime ministers will also violate the
Constitution and the Proclamation.
Another, but related issue, has to do with succession. As Mekonnen
Kassa put it, “God forbid, if the current PM Hailemariam were to pass,
who would be in line to become Acting/Interim PM?” In other words, would
they promote all three of them on a fast-track to premiership? The
impression that the present appointments and the whole unfolding
political drama gives me is that this body politic called Ethiopia is
being run as if it were in a state of emergency. This is a sad state of
affairs, as governance in Ethiopia needs to be rooted in a stably
anchored constitution and constitutionalism.
If there was a need for three deputy prime ministers, what legal
process should have been followed? The procedure for constitutional
amendment set out in the Constitution itself must be strictly adhered
to. First, a proposal for amendment has to be initiated, and according
to Article 104 of the Constitution, “Any proposal for constitutional
amendment, if supported by two-thirds majority vote in the House of
Peoples’ Representatives, or by a two-thirds majority vote in the House
of the Federation or when one-third of the State Councils of the member
States of the Federation, by a majority vote in each Council have
supported it, shall be submitted for discussion and decision to the
general public and to those whom the amendment of the Constitution
concerns.” Second, the proposed constitutional amendment must be
approved by a two-thirds majority vote of both the House of Peoples’
Representatives and the House of the Federation, in a joint session, and
in conjunction with two-thirds of the State Councils’ approval of the
proposed amendment by majority vote (see Article 105(2)).
The Ethiopian Government alleges that there’s only one deputy prime
minister and the new additions are only coordinators of clusters with
the rank of deputy prime ministers. Prime Minister Desalegn told
Parliament last week that his administration has formed three clusters
under the supervision of the newly appointed trio of deputy prime
ministers, Demeke Mekonnen, Muktar Kedir, and Debrestion Gebremichael,
who are in charge of social affairs; finance and economy; and good
governance and reform clusters respectively. The idea of a cluster is in
itself a constitutional absurdity. It’s all the more worrying because
the Prime Minister himself partakes of the division of the executive
powers into clusters. Even Bereket Simon scoffed two months ago at
rumors about the possibility of appointing three deputy prime ministers.
However, some people are quick to recycle what they are fed by the
state-controlled media. They tell you that these are only “coordinators”
of sorts with the rank of deputy prime minister for reasons best known
to themselves. Others tell you that the Prime Minister can legitimately
create ministerial offices or posts acting through the Council of
Ministers. A typically absurd reasoning was offered by Sisay Mengistie, a
professor of law at Addis Ababa University School of Law, who contends
that, “The PM using Council of Ministers can create offices (See Art.
77(2)) and to me still there is no more than one Deputy Prime Minister
rather with rank of Deputy Prime Minister.”
Dr. Assefa Fiseha, who is the one of Ethiopia’s leading
constitutional law scholars and Professor of Law and Director of the
Institute of Federalism and Legal Studies at Ethiopian Civil Service
University, posted recently on Facebook that “the idea of having two
more deputies is not bad, in constitutional terms as well as in
political science we call it power sharing, if genuine it works as there
will be more representatives from different groups which is crucial in
multiethnic context. The shifting of Dr Tewodros to foreign affairs is
strange, as he was very productive in the sector.” I concur with Dr.
Fiseha that it’s not a bad idea in itself, but my question to him was
“is it constitutional? Could this appointment have been done without
amending the constitution?”
Dr. Fiseha hopes, against hope, that it is an issue to easily
resolve. He replied to my Facebook comment with the following: “it
depends on which school of interpretation one adopts in settling the
issue. It may have problems with the letter of the constitution (Arts
75/76) but if you adopt a purposive or teleological view you can get
away easily. [W]hat is interesting is what we thought to be so clear is
not any more clear. Some colleagues were arguing some years back that it
is possible to apply the constitution without interpreting, here they
will surely run into trouble. There is no clear constitutional clause,
whether we like it or not.”
Nevertheless, I have no doubt that Dr. Fiseha would agree with me
that the first rule of interpretation requires where the words are plain
and clear, and the sense distinct and perfect arising on them, there is
generally no necessity to have recourse to other means of
interpretation. It is only when there is some ambiguity or doubt arising
from a particular clause that recourse has to be made to
interpretation, whichever school of interpretation you subscribe to.
There may be obscurity as to the meaning, or a doubtful character of the
phraseology, in relation to other clauses in the same law, or from an
incongruity between the words and the apparent intention derived from
the whole structure of the law, or its avowed object. In all such cases
interpretation becomes indispensable. Now my question is why do we need
to interpret a constitutional clause that is in itself crystal-clear?
Dr. Fiseha replied, “There you are Alemayehu. That was exactly what I
was talking about. That very rule you mention as such is least relevant
when it comes to constitutions. Read any standard and authoritative
constitutional text. No constitutional clause is clear, my reading so
far tells me that. In one way or another you will be forced to
interpret. For any specific case, you will not get an answer or you will
have many possible answers unless one refers to clauses such as terms
of the president (which is 6 years or 12 years). You think the issue
under discussion is clear? One can argue strongly that the grand purpose
of the constitution is to share power among various groups (federalism
with its emphasis on shared rule). The ideal power to share is the
executive which has so far been dominated by the PM. For one reason or
another the current PM shares this very power and does not see much
problem in doing that. As I said earlier, it may apparently seem to have
problems with the wording of Arts 75/76 but not necessarily with the
spirit of the constitution. Another point is to understand the
constitution as a whole without focusing only one or two articles.
More problematic issue for me is whether you can have a deputy PM who
is not a member of parliament and whether one can do that without first
having a law on the organization of the executive. The existing law
does not have places for more than one deputy.”
In my reply to his comment, I wrote, “Surely, the overarching aim and
purpose of a federal constitution is to ensure self-rule and
shared-rule, and, more importantly, that of an ethnic federalist
constitution is to guarantee ethnic equity and fairness in institutions
of governance at all levels. However, it seems to me you are over
stretching the originalist position to cover instances of manifestly
unnecessary ministerial appointments such as the present ones, which
were made on the pretext of maintaining ethnic balance. With all due
respect to your scholarship, I think you are reading too much into it.”
Besides, it doesn’t seem that the Prime Minister made the appointments
in anticipation of the interpretation offered by Dr. Fiseha.
Dr. Fiseha replied that “too much or not, I am implying that there is
no one answer to most constitutional issues and I mentioned only one,
you mentioned the literal interpretation and I can add some five of them
that will bring five different answers on the same matter. By the way,
EPRDF never argued on the basis of ‘ethnic balance’ whatever reason
forced the party to reach this stage, ethnic balance is simply our
understanding of the matter. I just heard the PM’s interview in search
of an explanation, the only hint he gave was to make government more
effective by dividing into many implying that I cannot do whatever the
former PM did, he did not mention ethnic balance, indeed Bereket
rejected that idea expressly some weeks back. We do not know yet the
motive.”
Dr Fiseha is correct in saying that the EPRDF never argued on the
basis of ethnic balance nor did it admit that the two appointees are
deputy prime ministers. The state-controlled media reported that two
more high-ranking EPRDF officials have been appointed with the rank of
Deputy Prime Ministers. Although, of all Ethiopian Government officials,
it was only Ambassador Dina Muftu who seemed to have indirectly
admitted in an interview with the Voice of America that “the
constitution is silent on the number of deputy PMs.” But clearly the
appointees are deputies. The notion of ethnic balance as justification
for the latest appointments was first suggested by Jason Mosley, an
associate fellow of the Africa program at the London-based Chatham
House. Mosley characterized the new appointments as a balancing act
prompted by EPRDF’s ethnic composition, as opposed to an imbalancing
act, and of EPRDF as in an “awkward phase”, as opposed to in a balanced
phase, which is a contradiction in terms, an oxymoron of sorts.
Mosley
says, “They’ve now got all four parties represented within the prime
minister and deputy prime minister slots…[while this puts the EPRDF in]
an ‘awkward phase’ as they attempt to ‘rule by committee’”, as opposed
to rule by a single guerrilla-fighter-turned-strongman. In response to
Mosley, Sebastyanos Beyene posted on his Facebook page, “How on earth
the fellow from Chatham House concludes ‘a balance of ethnic power’ is
beyond me. But I seriously doubt this reshuffle is an indication of a
‘power-balance’ in a meaningful form. St. James Square (Chatham House)
seems to be filled by parvenus on Ethiopia or by unambiguously deceptive
‘experts’ of our Country.”
I do object to Dr. Fiseha’s interpretivist approach, because that
kind of activist approach, as opposed to restrained approach, that he is
championing was not intended to apply to situations like this, as it
would certainly lead to absurdities and chaos. The historical
development of the interpretivist approach is fundamentally different.
Arguments marshaled in support of interpretivist activism include such
arguments as the neccessity to correct injustices and promote needed
social change; or that it is an acceptable last resort when the
executive and legislative branches refuse to act; or that it is
necessary to actively interpret the constitution as new conditions
arise. Not a single condition exists in Ethiopia today that justifies
this kind of activist interpretation. For instance, in Dred Scott v.
Sandford (1857), the Supreme Court of the United States (SCOTUS) applied
restraint in deciding that slaves were not protected by the
Constitution and could never become citizens. Another example includes
Plessy v. Ferguson (1896) in which SCOTUS upheld the constitutionality
of “separate but equal,” thus perpetuating segregation. So what the
activists advocate against is the such application of the plain meaning
rule to constitutional interpretations concerning rights, not to
questions like how many Presidents or Vice Presidents of the United
States can citizens elect. That would, no doubt, lead to absurdities and
chaos.
As I’ve tried to demonstrate, the latest move by the Prime Minister
fails the test of constitutionality. To reiterate, simply appointing
more deputy prime ministers than is required by the constitution is
unconstitutional.
Although the latest appointment came as a surprise to most observers
of Ethiopian politics, I for one wasn’t surprised in light of the recent
promotions of thirty-seven army generals following the death of the
Prime Minister Meles Zenawi, even before his successor was confirmed.
For me, that was a quiet coup d’état. The question of succession was
decided then and there by the body that endorsed the promotions, even
where there was no one to assume the constitutional responsibility of
the Commander-in-Chief. That was by far the most decisive appointment
ever made during the period of succession. The addition of thirty-seven
generals, most of who are from the TPLF, to the top military leadership
radically transforms the nature of the defense forces. The party within
the EPRDF coalition that can overwhelm the chain of command of the
defense forces decides Ethiopia’s fate.
Also recall that the promotions were sort of rushed, given that a
Prime Minister, who, ex officio is also the commander-in-chief of the
defense forces, had not yet been sworn in. In addition, it was still not
clear whether Hailemariam Desalegn was in fact the acting Prime
Minister, because he was still the Deputy Prime Minister and Foreign
Minister. He could not be all three at once. You can say there is
collective leadership in Ethiopia, but that is not the sort of
leadership we want to see, which is a relic of communism. Moreover, the
process in which the promotions were made lacked transparency. As you
know, accountability and transparency are two much talked about
principles of governance in Ethiopia, which, however, are currently
missing in action.
It is common knowledge that the EPRDF launched a program of
generational change (aka Metekakat) within the ranks of its leadership
in 2009, which I believe was pioneered by none other than Tefera Walwa,
and parroted by the late Meles Zenawi. That program extended its reach
to the Ethiopian National Defense Forces (ENDF) in 2010, with a view to
replacing 561 high-ranking officers. Leaving the current promotions
aside, thirteen generals and 303 colonels have been replaced up to 2011.
This program also aimed at promoting the equitable representation of
the country’s diverse ethnic groups in the ENDF’s top command, which was
emphasized by Defense Minister Siraj Fegessa, who said that an
affirmative action program would be put in place to enhance the ethnic
composition of the army.
How is changing the ethnic composition of the top leadership of the
defense forces at such a critical stage as in during the extended
absence of a Prime Minister, in the history of a country where ethnicity
is politically not only salient but decisive, different from a coup? It
is an outright reversal of the “metekakat” program, if not a coup. This
action, coupled with the current appointments of Debretsion
Gebremichael, Ph.D., and Tewodros Adhanom, Ph.D., both from the TPLF, to
the posts of Deputy Prime Minister and Foreign Minister respectively,
sealed the succession chapter in favor of the TPLF at least until 2015.
I have argued elsewhere on the unconstitutionality of the Definition
of Powers and Duties of the Executive Organs of the Federal Democratic
Republic of Ethiopia Proclamation No. 691/2010, the reason being that
legislative powers cannot be legitimately delegated to the executive.
Article 34 of Proclamation No. 691/2010 invests the Council of Ministers
with the power to reorganize the Federal Government Executive Organs
and stipulates that “[t]he Council of Ministers is hereby empowered,
where it finds it necessary, to reorganize the federal government
executive organs by issuing regulations for the closure, merger or
division of an existing executive organ or for change of its
accountability or mandates or for the establishment of a new one.” A
crucial question in connection with this is how can a regulation issued
by the Council of Ministers prevail over a legislation duly enacted by
the Parliament? How can the Council of Ministers “reorganize the federal
government executive organs by issuing regulations for the closure,
merger or division of an existing executive organ or for change of its
accountability or mandates or for the establishment of a new on?” This
is more than baffling for the constitutional law scholar and remains to
be a constitutional absurdity until corrected.
* Alemayehu Fentaw Weldemariam, an academic
lawyer and conflict analyst, is a visiting scholar at the Lyndon B.
Jonson School of Public Affairs, The University of Texas at Austin
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