Elections and emergencies show constitutional limits on states’ rights
By Brightman Gebremichael, May 16, 2020
The constitution suggests only the federal government can initiate elections and that a regional state of emergency is subservient to a national version
(Ethiopia Insight) — One of the basic features and defining elements for any federal system is the apportionment of powers and functions between the federal government and constituent states. The division between the two levels of government is not simply about decentralization. It is also concerned with the autonomy of regions and the principle of non-intervention in each other’s powers and functions. In Ethiopia today, the effect of COVID-19 has been to raise debate over two fundamental elements: the power to decree a state of emergency and the power to conduct elections.
The constitution specifies the situations under which the federal or regional governments can declare a state of emergency. According to Article 93(1) both levels of government are empowered to declare over natural disasters or epidemics. The federal government is also empowered to declare a state of emergency during external invasion or a breakdown of law and order which endangers the constitutional order and cannot be controlled by the regular law enforcement mechanisms.
Article 93 doesn’t explicitly specify the extent of the natural disaster or epidemic that would allow a regional government to declare a state of emergency. However, a cumulative reading of Article 93 and 51(16) suggests the federal government has the power to declare a state of emergency when a natural disaster or epidemic has nationwide impact, or when it affects two or more states. If the effect is limited to a single state, then it is in the power of that particular state to declare a state of emergency.
This poses another legal puzzle. If one level of government fails to declare a state of emergency when the situation requires it, can another level of government do so? While the pandemic is a national challenge, indeed a global one, it was Tigray region that first declared a regional state of emergency on 13 March. This was almost two weeks before the first COVID-19 case was confirmed in the country, in Addis Ababa. It took the federal government three weeks after this to declare a national state of emergency on 8 April. Even following the federal decree, a day after its declaration, Tigray renewed its state of emergency for an additional three months.
As far as a region declares a state of emergency to fill a lacuna created by federal inaction, there is no problem. However, once the federal government enacted its state of emergency this raised questions over the juridical relations between the two tiers of administration. From Tigray’s perspective, Amanuel Assefa, head of the regional justice bureau, said the federal government state of emergency applies in the state in as far as it does not contradict Tigray’s own emergency.
However, the Federal State of Emergency Decree No. 3/2020 Article 3(3) contains a supremacy clause. It states that any laws, practices, or decisions that contravene the decree, or regulations based on it, shall have no effect for the duration of the decree’s validity. Moreover, an apparent contradiction can be also inferred from a literal reading of the two decrees. For instance, while the federal decree imposes fine and imprisonment as alternative punishments for violation of the decree (see Article 6(1)), the Tigray decree imposes only a fine.
Most federal systems have a concept of supremacy in their constitutions, often stating it is the supreme law of the land and states can’t regulate, interfere in, or control federal issues. In Ethiopia, however, we find two separate clauses which appear supplementary. Article 9 provides for the constitution as the supreme law of land and it requires all laws, customary practice or decisions of any authority to be in line with the constitution. This is the supremacy clause. However, there is also a mutual respect clause, Article 50 (8), which demands that each level of government must respect the power and function of others.
Therefore, running contrary to Markos Debebe’s Ethiopia Insight commentary, the contradiction between the federal and state decrees must be solved in terms of the mutual respect clause. Regions assume the power to enact a state of emergency only when the federal government expressly delegates it (see Article 50(9)). Otherwise, regional declaration of emergency in such circumstances is tantamount to regional interference in federal power in violation of the constitution, in which case the act of the region becomes null and void as per the supremacy clause, Article 9.
In fact, Billene Seyoum from the Press Secretariat of the Prime Minister’s Office, in a briefing clarifying the federal state of emergency on 9 April, did not use either of these two clauses. She offered another line of interpretation. In her statement, she brought the idea of supremacy of the national state of emergency and said it superseded the regional one unless the latter covered more restrictive measures to mitigate the virus. She said the federal enactment provided minimum restrictive measures; a region could take more restrictive measures.
This interpretation is hardly in line with the exceptional nature of a state of emergency. Moreover, it opens a serious loophole for furthering abuse of people’s rights and freedoms. By its very nature, with the exception of non-derogable rights, a state of emergency imposes additional restrictions and limitations. Aiming to contain dangers like an epidemic, a state of emergency suspends rights and freedom to enable the government to address the problem. Letting regions have their own state of emergency imposing higher and more severe restrictions and limitations can serve no good purpose and only threatens to abuse people’s rights and freedoms.
The second constitutional confusion that has emerged as result of the pandemic relates to the power to conduct elections. The National Electoral Board’s public declaration of its inability to conduct the sixth national and state elections scheduled for August was approved by parliament. Since this raises an issue of the continuing legality of the governments whose mandates were due to end in early October, parliament referred the issue for constitutional interpretation as the constitution is silent on this.
In contrast to this, the ruling party of Tigray, the Tigray People’s Liberation Front (TPLF), said it would proceed with regional elections if it had to. The chair of the electoral board promptly said this would be “unconstitutional”. Subsequently, Getachew Reda, TPLF politburo member, offered some clarifications, saying that the party accepted the pandemic may affect the ability to hold elections. Instead its concern is postponement being used to extend the incumbent’s time in office, and that there should instead be political dialogue to search for a solution within the ambit of the constitution.
Regardless of these caveats, the contradictory statements by the party and the electoral raise the question over who should conduct elections in Ethiopia’s federal system. The TPLF, and some commentators, base their argument in support of the regional states’ authority to conduct elections on the right to self-determination. The claim is that conducting a regional election is an extension and aspect of the self-rule right enshrined under Article 39. They also argue that empowerment of the National Electoral Board to conduct regional elections under Article 102 is only a matter of convenience and efficiency.
The counter arguments are also drawn from stipulations and inferences in the constitution. An express stipulation is envisaged under Article 102 that establishes the electoral board. Article 102(1) states that the establishment of the board is to conduct “elections in Federal and State Constituencies”.
This is also supported from the way the constitution establishes similar institutions. Under the federal system, the federal government and the states have their respective legislative, executive, and judicial branches, and the assignment of legislative power to a particular level of government also assumes the assignment of the executive and judiciary powers, unless otherwise expressly provided. On this assumption, under Article 51(15) the power to enact laws governing elections is assigned to the federal government and there is no stipulation assigning this power to the regions.
Another illustration can be deduced from the way the constitution establishes the Auditor General on the one hand and the Human Rights Commission and the Ombudsman on the other. When the constitution intends a given institution to operate only at the federal level, it expressly says this. Under Article 101 (2), the Auditor General is specifically empowered to audit and inspect the accounts of ministries and agencies of the federal government. By contrast, when the constitution intends to empower an institution to operate at both state and federal level, as with the Human Rights Commission (Article 55(14)) and the Ombudsman (Article 55(15), it makes no such limitation.
The conclusion to be drawn is that the power to execute regional elections is assigned to the federal government, and the inference can be made that the National Electoral Board has inherent and exclusive constitutional power to conduct polls at both federal and regional levels, since the provision establishing it explicitly mentions both levels of government.
Furthermore, it is arguable that states cannot conduct their own elections even after requesting permission and assistance from the National Electoral Board and the House of Peoples’ Representatives. Instead, they can only do so when the federal government delegates on the basis of Article 50(9). This is because as conducting elections is an inherent federal power, initiation must come from the federal government. If a region wants to make an argument based on its self-rule rights that it has the authority to hold an election when the federal government is unwilling, it should seek constitutional review on the dispute.