By Prof Ben Nwabueze
Re-Published
My
last adventure in constitution-making was as constitutional adviser to the
Provisional Government of Ethiopia set up after the ouster of Mengistu Haile
Mariam. The country had been on the brink of disintegration as a result of
civilian armed insurgency against Mengistu’s atrocious tyranny. When I arrived
in the country in 1993 as constitutional adviser, the road from Addis Ababa
Airport into town bore the spectacle of recent fighting between the Mengistu
Government (before its final ouster) and the various armed insurgent Liberation
Organisations, with armed civilian defenders on nearly every roof-top holding
arms in their hands ready for action should the ousted government attempt to
regain power.
Happily,
the situation of near break-up was, after protracted, acrimonious and daunting
negotiations much of which I witnessed, saved by resort to federalism, which
was what I recommended as the viable option in the peculiar circumstances of
the country, given its almost unprecedented ethnic, racial and religious
diversity. But the type of federalism implemented in the resultant Constitution
of 1995 departed radically from the conventional type based on the familiar
principle or objective of unity-in-diversity, which was what my
proposals were predicated on.
The principle or objective underlying
and informing the federal arrangement under the new Constitution was that of diversity-in-unity,
which involves the recognition and entrenchment of ethnic, racial and religious
diversity in the Constitution as the basis for holding the country together in
unity, peace and stability, i.e. diversity-in-unity. Those observers, including
myself, inclined to criticise the entrenchment of the ethnic, racial or
religious groups, referred to by the designation the “Nations, Nationalities
and Peoples of Ethiopia”, as the basis of the federal arrangement in the
country must bear in mind that this unusual feature of the arrangement was
dictated by the danger of imminent disintegration arising from bloody ethnic
conflicts, and that, had the unusual place not been accorded to the
warring ethnic, racial or religious groups, the country might well have splintered
into its diverse elements.
To enable the reader to understand the
unique, unusual place of the ethnic, racial or religious groups as the basis
and pivot of the federal arrangement under the Constitution of Ethiopia 1995,
it is necessary to state the essential features of the arrangement. The
entrenchment of ethnicity in the Constitution finds expression in
the provisions (i) recognising the ethnic nationalities as the legal
entities constituting the Ethiopian state; (ii) defining “the territorial jurisdiction
of Ethiopia as comprising the territories” inhabited by the ethnic
nationalities (art. 2); (iii) requiring the States of the Federation to be
“delimited on the basis of the settlement patterns, language, identity and
consent of the people concerned” (art. 46(2)); (iv) bestowing on them the
designation, “the Nations, Nationalities and Peoples of Ethiopia” which runs
through the entire Constitution; (v) setting out the constitutive
attributes characterizing each of them as a group, i.e. a group that has
“traditionally and for a long time inhabited” separate, identifiable area of
the territory known as Ethiopia, and marked apart from other groups by “a
large measure of common culture or similar customs, mutual intelligibility of
language, belief in common or related identities and a common psychological
make-up” (art. 39(5)).
The Constitution further acknowledges
the ethnic or racial groups as the creators of the federal arrangement in the
country by the recital in the preamble: “We, the Nations, Nationalities and
Peoples of Ethiopia, have therefore adopted, on 8 December 1994 this
Constitution through representatives we have duly elected for this purpose.” It
is they, “the Nations, Nationalities and Peoples,” whose distinctive attributes
are, as noted above, defined in art. 39(5), who, at meetings during the bloody
crisis in 1991 – 93 when the country was at the brink of disintegration, agreed
to bury their antagonistic divisions and, in the words of the preamble to the
Constitution, “to continue to live together in equality and unity as one
community”, and to federate together under the name “The Federal
Democratic Republic of Ethiopia” (art. 1).
It is they, “the Nations, Nationalities
and Peoples”, who adopted the Constitution, fired by a conviction of the need
to hold the country together as “one political and economic community in order
to create sustainable and mutually supportive conditions for ensuring respect
for our rights and freedoms and for the collective protection of our
interests”, in particular for “advancing our economic and social development”.
Federalism in Ethiopia is thus not the creation of pre-existing state authority
or authorities or individuals, as in other federal systems in the world.
Reflecting the unique place of the ethnic nationalities as the creators of the
federal system, article 8(1), (2) & (3) of the Constitution affirms that
“all sovereign power resides in the Nations, Nationalities and Peoples”, and
that “this Constitution is an expression of their sovereignty.” Their unique
place is further reflected in the unusual provision in article 39(1) that
“every Nation, Nationality and People in Ethiopia has an unconditional right to
self-determination, including the right to secession” as well as “the right to
a full measure of self-government which includes the right to establish
institutions of government in the territory that it inhabits and to equitable
representation in state and Federal governments”, and the right “to express, to
develop and to promote its culture and to preserve its history.”
Language being an important aspect of
each group’s culture, all the languages are put more or less at par and
accorded “equal state recognition” (art. 5(1)), none being subordinate to the
other, as by the privileged status previously accorded to Amharic as the
official language throughout the state. Its position is now reduced to just
that of “the working language of the Federal Government” (art. 5(2)), whilst
“members of the Federation may by law determine their respective working languages”
(art. 5(3)). The equality of the languages reinforces the provision in article
47(4) that “member states of the Federal Democratic Republic of Ethiopia shall
have equal rights and powers”.
Significantly too, the Nations,
Nationalities and Peoples are made the constituent units or “members” of the
Federation, with the designation “States”, and are entitled to have their own
flags and emblems (art. 3(3)); each of them, either singly or together with
others, as with “the State of the Southern Nations, Nationalities and Peoples”,
constitutes a “State” under the Constitution (art. 47(1)). The Constitution
recognises in every “nation, nationality or people” included in an
existing State, “the right to establish, at any time, its own State” (art
47(2)).
The Constitution not only defines the
distinctive attributes of the ethnic groups coming within the designation “the
Nations, Nationalities and Peoples of Ethiopia” (art 39(5)), but specifically
identifies by name the ethnic groups covered by the designation, namely, the
Amharas, Tigreans, Oromos, Afars, Somalis, the Banshangul/Gumuz Peoples, the
Gambela People and the Harari People; the eight specifically named
are supplemented by the addition of “the Southern Nations, Nationalities
and Peoples” (art. 47(1)).
The recognition of ethnicity as the
basis of the federal arrangement under the Constitution is again reflected in
the provision in article 49(5) to the effect that “the special interest of the
State of Oromia in Addis Ababa, regarding the provision of social services
or the utilisation of natural resources and other similar matters, as well as
joint administrative matters arising from the location of Addis Ababa
within the State of Oromia, shall be respected. Particulars shall be determined
by law.”
Apart from the recognition of, and
respect for, the special interest of the Oromos in Addis Ababa, Government,
both Federal and State, is enjoined to “respect the identity of Nations,
Nationalities and Peoples” (arts 85(2) and 88(2)). This is supplemented by the
directive in article 87(1) that “the composition of the national armed forces
shall reflect the equitable representation of the Nations, Nationalities and
Peoples of Ethiopia.” The ethic nationalities are given yet another significant
role in the two Houses established by the Constitution at the federal
level, viz the House of the Federation and the House of Peoples’
Representatives; the former is composed of “representatives of the Nations,
Nationalities and Peoples”, elected by the Council of each such Nation
that constitutes a State; instead of itself electing the representatives,
the Council may, in its discretion, choose to have the representatives
elected directly by the people of the ethnic nationality concerned (art.
61).
Very vital powers and functions are
entrusted by the Constitution to the House of the Federation relating to the
maintenance and promotion of the peace, unity and continuity of the Federation
as well as the financial relations of the federal and state governments (art
62). Specifically, the House is given power – (i) To decide all constitutional
disputes in conjunction with the Council of Constitutional Inquiry established
by article 82(1) of the Constitution, which bestows on it, the power to
interpret the Constitution; (ii) To promote the equality and unity of the
Peoples of Ethiopia enshrined in the Constitution; (iii) To strive to find
solutions to disputes or misunderstandings that may arise between States; (iv)
To order Federal intervention if any State, in violation of the Constitution,
endangers the constitutional order; (v) To determine the division of revenues
derived from joint Federal and State tax sources and the subsidies that the
Federal Government may provide to the States; (vi) Although the House is not a
legislative body as such, it has power “to determine civil matters which
require the enactment of laws by the House of Peoples’ Representatives” (art.
62(8)); (vii) To elect, in conjunction with the House of the Peoples’
Representatives, the President of the Republic at a joint meeting of the two
Houses, and by two thirds majority vote of such joint meeting (art. 70(2));
(viii) To determine the boundaries of constituencies on the basis of census
results and a proposal submitted to it by the National Election Board. These
are critical powers indeed, but the most critical of its powers is the power to
decide all constitutional disputes (art 83) and, as an incident thereof, to
interpret the Constitution.
A Council of Constitutional Inquiry is
the means by which it discharges this function. A constitutional dispute is
first investigated by the Council either at its own instance or on a reference
to it by a court or an interested party, including cases in court where a
federal or state law is challenged as unconstitutional. The Council after
investigation then submits its opinion on the matter to the House of the
Federation, whose decision is final. What this means, curiously enough, is that
the interpretation of the Constitution and the determination of all constitutional
disputes belong to the House of the Federation, and not to the courts. The
House even appoints – from amongst its members – three of the eleven members of
the Council of Constitutional Inquiry (art. 82(2)), the other eight members are
the President and Vice-President of the Federal Supreme Court as its President
and Vice-President, and six legal experts appointed by the President of
the Republic on the recommendation of the House of the Peoples’
Representatives.
The rationale for the unusual role of the
ethnic nationalities in the determination of constitutional disputes and the
interpretation of the Constitution is far from clear, but its significance is
clear; the ethnic nationalities are the hub on which the federal system in
Ethiopia rests and operates. They are not only the creators of the system, but
are its very essence, indeed its soul without which it disintegrates into its
different parts. Last but not the least of the part entrusted to the ethnic
nationalities relates to the amendment of the Constitution, a part that follows
inevitably from their role in its making
(arts 104 and 105).
As the makers of the Constitution, they
must like-wise be involved in its amendment. A proposal for constitutional
amendment can be initiated in the first place only if it has the support of a
two-thirds majority vote in either the House of the Federation or the House of
the Peoples’ Representatives or, in the alternative, the support of a majority
vote in each of the Councils of one-third of the States of the Federation;
thereafter it must be “submitted for discussion and decision to the
general public and to those whom the amendment concerns”. How the
“decision” of the general public or of the section of the public affected by
the amendment is to be ascertained is not stated unless the provision has a
plebiscite in contemplation.
After the proposed amendment has been
initiated in the manner indicated above comes the approval stage. The amendment
of certain specified provisions requires, additional to the approval of other
bodies, approval by a two-thirds majority vote, of the House of the Federation,
whilst the amendment of all other provisions must be approved by a two-thirds
majority vote at a joint meeting of the two Houses and by a majority vote of
two-thirds of the member States of the Federation.
What the federal arrangement in
Ethiopia has taught me and should teach others is that the principle of
unity-in-diversity is not the only approach in trying to achieve unity through
federalism in a territorially extensive and socially diverse country. For us in
Nigeria, a federal system, built on the ethnic nationalities as the foundation
and pivot, i.e. diversity-in-unity, as in Ethiopia (1995),is worth serious
consideration at a National Conference of ethnic nationalities, modified as the
circumstances of our country dictate.
The on-going constitution review
exercise by the National Assembly is nothing but shadow-boxing.
Given that a constitution is, by its
generally accepted definition, an instrument of government whose source
of authority, as a supreme law, is the people, the 1999 Constitution
made for us by the military by military Decree is not a “constitution” at all,
and we are merely pursuing shadows by the so-called constitution review
exercise which is purely an exercise in self-deceit impelled by the
self-interest of the Assembly members. The fundamental issue as to how and on
what terms and conditions our diverse peoples can continue to live together in
peace, stability and unity as one country remains, and will continue to stare
us in the face, and to threaten our corporate existence.
In the aftermath of the bloody
conflicts of 1991–93, the bloodiest in the country’s more than 3,000 years of
recorded history, the people of Ethiopia faced the fundamental issue squarely,
and the solution they worked out at meetings of the ethnic
nationalities, based on the tragic lessons of the bloody conflicts, was
embodied in the 1995 Constitution, which is still the basis of the continued
corporate existence of the diverse
“Nations, Nationalities and Peoples”
comprised in Ethiopia seventeen years after, 1995–2012. We in Nigeria must
likewise squarely face that fundamental issue, and not expect that the grave
threat it poses to our corporate existence can be made to go away by the
gimmick of the National Assembly’s constitution review exercise.
This is an extract from Professor Ben
Nwabueze’s forthcoming autobiography.
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