Ethiopia in Constitutional Crises?

July 29, 2012

by Alemayehu G. Mariam

In an interview I gave to the Voice of America Amharic program last week, I was asked to comment on the nature of constitutional succession in the event of death, disability, resignation, illness, incapacity or removal from power of the prime minster (PM) in Ethiopia. The answer I gave seems to have surprised, shocked, dismayed and appalled many. The Ethiopian Constitution makes no provisions for the orderly transfer of power in the event of a vacancy in the PM’s office. Simply stated, there is no constitutional process for succession of executive power in Ethiopia!

Ethiopia in Constitutional Crises?

The issue of succession has become critical in light of the prolonged and mysterious absence of the current holder of PM’s office and the garbled official explanation for his complete disappearance from public view. Some Ethiopian opposition leaders have apparently argued for the installation of the deputy prime mister (DPM) as a constitutional successor to the PM or at least serve as acting PM until the final health status of the current holder of the PM’s office is established. Their argument is neither textually nor inferentially supported by any reasonable reading of the relevant provisions of the Ethiopian Constitution.

The office of the DPM is mentioned 4 times in the Ethiopian Constitution, three of which occur in Art. 75; and once in Article 76 in which the DPM is mentioned as a member of the Council of Ministers. Article 75 defines the totality of powers, duties and roles of the DPM:

1. The Deputy Prime Minister shall: (a) perform the duties assigned to him by the Prime Minister; (b) represent the Prime Minister in his absence. 2. The Deputy Prime Minister is accountable to the Prime Minister.

Under Article 75, the DPM is a political creature of the PM’s making, and not an actual constitutional officer with prescribed duties and functions. Unlike the PM (art. 73), the DPM is not “elected”, rather s/he is a mere political appointee who is selected by the PM. Whatever powers the DPM has comes directly and exclusively from the PM, and not the Constitution. The DPM “performs duties assigned by the prime minister” and has no independent or residual statutory or constitutional duties or powers. The PM directs the activities, functions and roles of the DPM as the PM sees fit. The DPM can be dismissed or replaced by the PM at any time. In short, the DPM’s office is in reality an empty constitutional shell — a make-believe office — devoid of any constitutional or statutory responsibilities.

It is important to examine the constitutional nature of the DPM’s office more closely to understand the enormity of the constitutional crisis facing Ethiopia today regardless of whether the current holder of the PM’s office returns to office. The DPM is constitutionally designated as the “representative” of the PM. The term “representative” in Article 75 does not have the same meaning as the term “representative” in the “Council of Representatives” whose members are “elected for a term of five years” with full authority to “represent” their constituencies (Article 58). The DPM as the PM’s “representative” is not a “PM in waiting or in the wings”. The DPM could stand in or appear on behalf of the PM as directed and assigned, or possibly “represent” the PM as an agent or proxy if specifically authorized. But the DPM has no independent constitutional powers to “represent” the PM or perform the PM’s duties and responsibilities as the PM’s “representative”.

To be sure, there is no textual basis in Article 75 or in any other part of the Constitution to infer that the DPM can exercise any of the PM’s powers under Article 74. For instance, the DPM has no constitutional authority to function as “the head of government, chairman of the Council of Ministers and the Commander-in-Chief of the Armed Forces” under any circumstances. Nor does s/he have the power to act as “acting prime minster” or perform in any other similar capacity in the event of a vacancy in the PM’s office or in the absence of the PM. The DPM does not have the constitutional power or authority to “direct, coordinate and represent the Council of Ministers,” or to “appoint all high government officials.” The DPM cannot “perform other duties assigned to him by this Constitution and other laws” because neither the Constitution nor other “laws” give the DPM any “duties” whatsoever to perform. Whatever the DPM does, s/he does at the direction, supervision and pleasure of the PM. Practically speaking, the DPM is the PM’s “gofer” (errand runner) and factotutm (handy person), and not a true constitutional officer.

Analysis of Articles 72-75 (“Executive Power”) demonstrates that the DPM’s office was structurally designed as a shadow, symbolic or make-believe office with the manifest aim of giving the public impression that there is a deputy PM who could take over in the event of a vacancy in the PM’s office in the same sense as a vice president would succeed a president. It is an office created with constitutional smoke and mirrors with the intention of creating the illusion of a constitutional plan of executive succession without actually creating one. Article 75 could be an amazing constitutional sleight of hand or an egregious omission in constitutional design!

Is Ethiopia in Constitutional Crises?

It is manifest that Ethiopia is now facing not only a leadership and power vacuum but also a monumental constitutional crises in the absence of a constitutional plan or procedure for succession. A constitution without a clear plan of succession is an invitation to political chaos, conflict and instability. In the United States, the Presidential Succession Act of 1947 (which supersedes other prior succession Acts) establishes the line of succession to the powers and duties of the office of President of the United States in the event that neither a President nor Vice President is able to “discharge the powers and duties of the office.” The Twenty-fifth Amendment to the United States Constitution establishes procedures for filling a vacancy in the office of the Vice President and responding to Presidential disability.

Article 60 of Ghana’s Constitution also provides clear provisions on presidential succession: “(6) Whenever the President dies, resigns or is removed from office, the Vice-President shall assume office as President for the unexpired term of office of the President… (8) Whenever the President is absent from Ghana or is for any other reason unable to perform the functions of his office, the Vice-President shall perform the function of the President until the President returns or is able to perform…” Even North Korea has a plan of succession though the process is a dynastic family affair in which power is passed from grandfather to son to grandson as we have witnessed recently.

Why is there no plan or clear statement or language on succession of executive power in the Ethiopian Constitution? I noted above that the particular design of the office of the DPM could be an amazing constitutional sleight of hand or an egregious omission and irremediable defect in constitutional design. If the drafters of the 1995 Ethiopian Constitution never anticipated, imagined, calculated or believed the person who becomes PM of Ethiopia will ever be removed from office by any means and for any reason and thus designed the DPM’s office as it is, then their omission could be regarded as a grossly negligent act of incompetence for which they should collectively suffer public condemnation and castigation. But it is unlikely that the DPM’s office was designed with such obvious oversight or inadvertence. It is not an act of omission; it is an act of commission.

A reasonable analysis of Article 75 suggests that the drafters intentionally and with great foresight designed the DPM’s office the way they did (toothless, powerless, duty-less) out of an abundance of caution to guard against any potential future loss of the PM’s office (and with it control of the state, armed forces, economy, etc.,) from the hands of those elements who have had a chokehold on the office for the past 21 years. Given the ethnically tangled nature of Ethiopian politics, the individuals who controlled the drafting of the Constitution understood that the PM’s and DPM’s office could not be in the hands of members of the same ethnic group. That is to say, if the PM is a member of one ethnic group, the deputy prime ministership must necessarily be given to a person from another ethnic group to maintain the illusion of power sharing and play a clever political balancing game. If there is a real possibility of succession under this “power sharing” arrangement, the outcome could be potentially catastrophic to the power brokers controlling the PM’s office in the remote and unlikely event the PM is unable to discharge his/her duties and must leave office.

Under Article 75, the DPM could prove to be a Frankensteinian creation of the PM capable of destroying its own creator. If the DPM succeeds the PM, then the power brokers and structure that supported the PM could collapse with the supporters of the DPM as PM gaining power. As a result, there is high likelihood that the power brokers and supporters of the PM who vacated office could potentially lose power and influence and be marginalized under the new PM. However, the power brokers and supporters of the PM who vacated office could still maintain their power and influence by installing a DPM from one of the minority ethnic groups in the country. By making such an appointment, the PM and supporters effectively create the illusion that members of the country’s ethnic minorities are gaining recognition, power and status hitherto unavailable or denied to them while immunizing themselves from the criticisms of other major ethnic group contenders who may be making claims to the DPM’s office.

The appointment of a DPM from a minority group ensures that power remains in the hands of the power brokers and supporters of the PM whether the PM stays in office or vacates for any reason. The only way a DPM from an ethnic minority could survive politically as a PM is with the support of those who supported the PM who vacated office. The DPM as PM simply will not have a sufficient support base in the party structure, bureaucracy, military, civic society, economic structure, etc. to be able to act independently. The DPM as PM could only survive as a mere puppet in the hands of the power brokers and supporters of the PM who vacated office.

Facing such a daunting constitutional dilemma, the power brokers and supporters of the current holder of the PM’s office will have no viable option but to ram through by unconstitutional means the installation of the holder of the DPM as PM. If such was the design, Article 75 could be regarded as a masterful stroke of political genius unrivalled in modern African constitutional history. The downside is that given the manifest constitutional problems of succession, other power contenders are unlikely to accept such an outcome which is patently unconstitutional and undemocratic. They may insist on a new election for a PM within a reasonable period of time if it comes to pass that the current holder of the PM’s office could no longer perform the duties of that office.

To dodge this enormous constitutional dilemma and avoid an election for a new PM at any cost, the power brokers and supporters of the holder of the PM’s office could create various distractions and diversions. It is very likely that they could fabricate an emergency (internal by claiming insurrection or external by triggering conflict) and declare martial law. They could engage in dilatory tactics by refusing to make firm and clear announcements on the status of the current holder of the PM’s office. They could seek the intervention or mediation of outside powers to help resolve the crisis by proposing a short-term transitional solution until a permanent solution is found either by constitutional amendment or new elections. They are likely to use the “constitutional court” under Article 83 to obtain an interpretation of Article 75 which is manifestly contrary to the plain meaning of the constitutional text. No doubt, they will have many tricks up their sleeves to get themselves out of the constitutional jam, buy time and cling to power.

The smart move for the power brokers and supporters of the holder of the PM’s office now would be to take this fantastic opportunity and offer an olive branch to the opposition and invite them to a dialogue on power sharing and other matters. There is no shame, defeat or harm in making a peace offering to the opposition. It has been done in Kenya and even Zimbabwe. It was done in South Africa under the most difficult of circumstances. It has been tried with different outcomes in Burundi, Guinea, Madagascar and the Ivory Coast.

In 2009, Kenya formed a “grand coalition government” among bitter political enemies. They were able to write a new constitution which was approved by an overwhelming 67 percent of Kenyans in 2011. In 2008, President Robert Mugabe and opposition leader Morgan Tsvangirai signed a power-sharing deal. Last week, Zimbabwe Prime Minister Morgan Tsvangirai pushed for approval of a draft constitution prepared by the Select Committee of Parliament on the New Constitution (COPAC). Both countries have a long way to go on the road to full democratization but they are certainly on the right track. The only sensible way out of this constitutional predicament is to follow Nelson Mandela’s prescription: “If you want to make peace with your enemy, you have to work with your enemy. Then he becomes your partner.” It’s the perfect time now for all to bury the hatchet, shake hands and get their shoulders to the grindstone and build a new Ethiopia.

Constitutional Transition From Dictatorship to Democracy

The DPM issue is only the tip of the iceberg of the enormous constitutional crises to face Ethiopia. Those of us in the business of constitutional law and analysis have known of the structural flaw in the design of the DPM’s office, the expansive nature of executive power as well as numerous other flaws in the current Constitution for a long time. Truth be told, our characterization of the current holder of the PM’s office as “dictator” over the years was not mere rhetorical flair but an accurate and precise description based on a careful and penetrating analysis of the Ethiopian Constitution and the way power is concentrated in one office and one person.

A dictator is a person “who has absolute power or authority.” That is what the 1995 Ethiopian Constitution created in Articles 72-75. Article 74 created a PM whose powers are total, unbridled and unlimited and without any plan of succession. The PM and his hand-selected Council of Ministers are the “highest executive authority” in the country. The “Prime Minister” is the “head of government, chairman of the Council of Ministers and the Commander-in-Chief of the Armed Forces.” The PM is only nominally accountable to the Council of Deputies and the judiciary. S/he is not accountable to the Council of Ministers. In fact, the PM has total and absolute dominance over these institutions. The PM has the power to “dissolve the Council [of Representatives] before the expiry of its term so as to conduct new elections”, dismiss or replace any member of the Council of Ministers at will and nominate and dismiss judges. Under the Constitution, the PM is accountable to no one. The PM’s word is the constitution and the law. The PM is an absolute constitutional dictator though that sounds oxymoronic!

The Life and Death of African Dictators

All dictators believe they can live forever. But only the evil they have done during their lifetimes lives forever. Sitting in the saddle of power, African dictators fear no one, not the people or even God. They have convinced themselves they are heroes and “gods” in their own right. They try to project the image of invincibility and immortality. But they are neither; they are mere mortals. They get sick, they suffer pain and they die like the people they oppressed, jailed, tortured and killed. They hold their people in total contempt and treat them like dumb children. They try to convince their people that they are healthy when they are sick and alive when they are dead.

In the past 7 years, the story we hear in Ethiopia today has been told many times in Africa. In 2005, President Gnassingbé Eyadéma of Togo, at the time Africa’s longest-ruling dictator, died of a “heart attack” as he was being rushed to Europe for treatment. Though he had heart and other serious health problems for years, those facts were hidden from the public until it was suddenly announced that he had passed away. In 2009, Gabon’s long reigning dictator, Omar Bongo Ondimba, died in a hospital in Spain. Government officials in Gabon had long denied he was sick or had any serious health problems. But Bongo had cancer. In 2009, President Umaru Yar’Adua of Nigeria reportedly left the country for what was described as “routine medical check up” in Saudi Arabia. After months of prolonged absence, he returned to Nigeria and died of lung cancer. Earlier this year, President Malam Bacai Sanhá of Guinea-Bissau died at a Paris hospital from what was officially described as “advanced diabetes” and a hemoglobin problem (possibly leukemia). Sanha denied that he had health problems and said his situation “was not as serious as people want to make out”. President Bingu wa Mutharika of Malawi also died earlier this year from what was described officially as a heart attack after being transported to South Africa in a comatose state.

In all of these cases, the serious health issues were underplayed by the leaders themselves and their officials. They often blamed the cynical opposition for exaggerating news and information of their health condition. The officials in Ethiopia have a constitutional duty under Article 12 to perform their responsibilities “in a manner which is open and transparent to the public”. That transparency includes the duty to divulge full information to the public on the prolonged absence of the holder of the office of PM.

The life and death of President John Atta Mills of Ghana last week stands in stark contrast to the other African dictators. For the past several months, the Ghanaian public was aware that President Mills was having serious health problems. He was making few public appearances and had retreated from public view, leaving his vice president, John Dramani Mahama, to attend public functions. Though he won the presidency by a razor-thin margin in 2009, Mills soon gained the love, respect and appreciation of his people. In its online editorial, The Nation, Nigeria’s top circulation publication observed: “The open affection Ghanaians showed President Mills and the Ghana Parliament’s fidelity to constitutional provisions are areas Nigeria can learn from. President Mills respected his office and honoured his people by working hard for them. Little wonder, the people reciprocated by treating him as a rare hero in death.” Africa needs rare heroes. The alternative for Africa’s villains has been prophesied by Gandhi long ago: “There have been tyrants and murderers and for a time they seem invincible but in the end, they always fall — think of it, ALWAYS.”

There is a way out of the constitutional crises and dead end Ethiopian is facing today. Nelson Mandela paved that two way road in South Africa and called it “Forgiveness and Goodness.” We should all prepare ourselves and the people to travel that two-way road. It is time for national dialogue!

Amharic translations of recent commentaries by the author may be found at: http://www.ecadforum.com/Amharic/archives/category/al-mariam-amharic and http://ethioforum.org/?cat=24

Previous commentaries by the author are available at:

http://open.salon.com/blog/almariam/ and www.huffingtonpost.com/alemayehu-g-mariam/

14 Responses to Ethiopia in Constitutional Crises?

  1. Tsion

    August 5, 2012 at 6:13 pm

    HAS ANYONE READ SITINA AHMEDS ANALYSIS ABOVE? CAN ANYONE, INCLUDING PROF. AL COMMENT ON IT, PLEASE. I THINK SHE (I AM ASSUMING FEMALE), MADE GOOD POINTS IN CONTRAST TO THE ARTICLE.

  2. Bekele Hailu Gebremedhin

    July 31, 2012 at 5:33 am

    Hallo! Sitina. The following are the existing facts on the ground.
    1) prime minister disappeared in thin air for 74 days
    2) the so called PHR I call them rubber stamps, are incapacitated purposely not to question the prime minister and his party by the constitution
    3. The constitution instead of delegating power to the next person in line when the PM dies is open. Because of this openness in the constitution the gang of 4 jumped in trying to muddle the fate of our country. Who’re these gang of 4s? Friends of the ex-pm. Do you know any country’s constitution giving the right to jump in?
    My friend lack of openness, transparency etc.. are causes and the crisis is the effect. If you’re trying here to tell us what EPDRF is saying about his copied constitution “clear” that’s your opinion and understand with all due respect. Pls do not tell us anything about these thugs for they’ve never done nothing except looting, development of prisons and style of torture, fabrication of lies, graduations of fake judges and many more……………….. Therefore, Ethiopia is in constitutional crises. Period!!

    Am writing on my phone so I apologize. Bekele

  3. Sitina Ahmed (first posted on the Ethiopian Law and Justice Society Blogspot)

    July 30, 2012 at 2:27 pm

    I listened to a VOA interview in which a scholar concludes by saying that Ethiopia is faced with “constitutional crisis” because of lack of constitutional clarity on the replacement of the prime minister. I am writing this quickly composed note to say the conclusion is a stretch.

    The Ethiopian Constitution is clear enough on the replacement of the PM. The problem is lack of openness, transparency and integrity in the political system. Anger and frustration with the political system is one thing while telling the truth another. There is no “constitutional crisis” that forces constitutional debate, review and amendment which takes years. Even TPLF says “the Constitution is clear” and we should insist that it respects what it says.

    Most of the constitutions of countries that have adopted parliamentary system (as opposed to presidential system) do not specify succession of power if the prime minister is removed from position, resigns, dies or loses capacity to carry out her/his duties due to illness or some other reason. This is true for Britain and Canada, two of the oldest democracies with long constitutional and parliamentary history. Ethiopia falls in the parliamentary system category but with brief constitutional and parliamentary history and authoritarian rule.

    Removals, resignations, deaths and incapacity of prime ministers occur rarely and most of the countries in the parliamentary system do not seem bothered by power succession issues. Ethiopia is not an exception in this regard. In practice, when there is no prime minister, a “constitutional convention” steps in to fill the gap. Generally speaking, convention provides that deputy (vice) prime minister positions are symbolic which do not enable the holder of such office to claim and acquire the prime minister position. Again, generally speaking, the governing party from which the prime minister came will form a new government or the party will elect a new leader who becomes the prime minister. The new prime minister might form a new cabinet or continue with the old one. He vacates his office with the end of term of his predecessor.

    Compared to others, the Ethiopian constitution appears better; it indirectly specifies how the prime minister can be replaced. In conformity with the convention and tradition of the parliamentary system, Article 75 of the Constitution makes clear that the deputy prime minister cannot replace the prime minister. The moment the prime minister is unable to carry out her/his functions, the deputy prime minister loses power to act on her/his behalf. The deputy prime minister can finish tasks given to him by the prime minister but cannot undertake new ones. In effect, his responsibility as deputy prime minister ends simultaneously with that of the prime minister. Any decision he makes after that stage can be illegal except decisions with international consequences which might be binding.

    Again, in conformity with the convention and tradition of the parliamentary system, once the prime minister is removed, resigns, dies or loses capacity, his position is open and it is to be filled. In our case, it is by way of election. The same procedure through which the prime minister took office in the past. Article 73 of the Constitution states that the prime minister is elected by the Council of Peoples’ Representatives (HPR) from among its members. The article further states that executive responsibility is assumed by a party or a coalition of parties that constitutes a majority in the Council of Peoples’ Representatives. Since there is no change of government, any member of the HPR that comes from the party that has won the majority of seats becomes the prime minister. His term of office ends with that of the HPR’s whic is shorter than five years.

    What appears to be missing is the procedure to initiate the process of replacing the prime minister. Such a procedure is not supposed to be dealt with by the Constitution. Laws other than the Constitution and internal regulations of the HPR casts some lights on this issue. First, the prime minister has an office established by law led by a minister. The office, responsible for the day to day activities of the prime minister is expected to report the prime minister’s absence from office to the HPR, to which the prime minister is accountable. The HPR then investigates the situation and proceed to replace him by electing a new prime minister as stipulated by the Constitution. If the HPR was independent, it could have, on its own accord, initiated investigation since the absence of the prime minister from office for a month or more is a public knowledge. Second, members of HPR could petition for an investigation of the situation so that a prime minister is elected.

    The 2010 election fiasco put aside, executive responsibility is still assumed the TPLF/EPRDF. That’s the party that constitutes the (absolute) majority in the HPR. The TPLF/EPRDF resembles a coalition of parties, but it is a partnership of different ethno – political organizations led and controlled by the TPLF. It is a party and not a coalition of parties as foreseen by the constitution. The fact that TPLF/EPRDF is considered one organization irrespective of ethnic background of its constituent parties makes every individual member of the parties eligible to be elected prime minister. The only additional requirement is being elected to the HPR.

    The interesting thing to happen from election of a new prime minister is if the junior partners of TPLF vote in block. Say OPDO, ANDM and SNNP vote for their candidate or vote jointly for their joint candidate. Since these organizations individually and collectively have the majority of seats in HPR, they can effectively end TPLF rule in the country.

  4. Beahilu

    July 30, 2012 at 11:02 am

    Thanks for evrything all, if it is very improtent the exist of Ethiopia. we should do and the right thing if AGANIST the enEmy of Ethiopia, who wants desroy Ethiopia,and every thing we believe all on the Truth so we all on one truth, we all all ar ETHiopians we all for a comen gool ETHIOPA
    LET TRTUH PREVAIL
    SOME YEMENEGESTE SEMAYATE KULE NEW
    let teh truth prevail

    FREEDOM FREEDOM FREEDOM, FOR ALL

  5. Bekele Hailu Gebremedhin

    July 30, 2012 at 5:22 am

    What an outstanding analysis! Wow! This reminds me of the amharic proverb which goes “leb yalew leb yaderg ” meaning he who has the brain and sound judgement come to his senses. Do anyone of us think that the weyanes have even a little bit of commonsense? Never.
    They’re arrogant bunch of thugs who will never learn from history. We’re ashamed of these and on the other side we’re proud of Al. Thanks for your analysis. Rgds. Bekele

  6. Wendu

    July 30, 2012 at 5:20 am

    I feel sorry and embarrassed for DPM Haylemariam, his house made has more power in his house in the event of he & his wife is not around the house than he has power in the PM office.

  7. Tegan

    July 30, 2012 at 5:14 am

    What a wonderful and professional article! Keep up!

  8. Beahilu

    July 30, 2012 at 1:55 am

    Thanks for your article, we all want to get rid of THE PENTGRAM which is the sign of DEVEL on ETHIOPIAS FLAG´´ ETHIOPIA IS THE LAND OF THE TRUTH´´ not the land of devels. Prof. AL wrote so many wonderfull articles, thanks for that, but now it is the time of to organize the oppsition group on united front and aktivate inside and out side to go out in mass demonstration to get rid of the Woyane Melse instead of talking who the Woyane leader is going to take power in Ethiopia as you did on VOA.

    ´´SOME YEMEGESTE SEMAYATE KULEFE NEW´´
    ´´FASTING IS THE KEY TO HEAVEN´´
    DELE LE EWENTE ETHIOPIA
    LET THE TRUTH PREVAIL

    FREEDOM, FREEDOM, FREEDOM

  9. Askale Dama

    July 29, 2012 at 11:01 pm

    Dear ECADF:

    First, I want to thank you for everything you are doing to help the freedom movement. I have a suggestion. You just posted Prof. Al Mariam’s constitutional analysis. That is an important issue on its own. My suggestion is about the Woyane flag. Look at what you just did. It is brilliant. That is how we must reject their flag and that image you just created speaks more than volumes of books. For the purpose of Al’s article, ‘constitutional Crieses’ is fine. But as a general logo of opposition, you can replace the ‘constitutional crisis’ with ‘Ethinc Dictatorship’ and it can be a universal image of opposition for our movement. It is a brilliant concept you just gave us. That is called effective framing! Thank you.

  10. Askale Dama

    July 29, 2012 at 11:01 pm

    Dear ECADF:

    First, I want to thank you for everything you are doing to help the freedom movement. I have a suggestion. You just posted Prof. Al Mariam’s constitutional analysis. That is an important issue on its own. My suggestion is about the Woyane flag. Look at what you just did. It is brilliant. That is how we must reject their flag and that image you just created speaks more than volumes of books. For the purpose of Al’s article, ‘constitutional Crieses’ is fine. But as a general logo of opposition, you can replace the ‘constitutional crisis’ with ‘Ethinc Dictatorship’ and it can be a universal image of opposition for our movement. It is a brilliant concept you just gave us. That is called effective framing! Thank you.

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