by Laalo Guduru
What an eventful and an emotional roller-coaster ride February 2018 was in Ethiopia. First, the Oromo People’s Democratic Organization (OPDO) released a groundbreaking and a far-reaching statement. Then the Oromo population, led by the Oromo youth group, Qeerro, staged a hugely successful market boycott along with political rallies throughout Oromia. Within the second day of the Qeerro’s action, the Ethiopia government released thousands of political prisoners, including prominent political leaders like Bekele Garba, Olbana Lelisa, Andualem Arage, and famous journalists like Eskinder Nega and others.
The synergy of all these charged the political atmosphere and ignited and inspired the people to be more engaged to the extent not seen for a long time. Hope and optimism was in the air. Welcome-home events were organized for the just released political prisoners in different cities. Massive crowds showed up and gave them heroes’ welcome wherever they went. And this was done with the blessing and participation of local authorities in Oromia. Rubbing shoulders with local authorities, they made speeches, thanking the population for their struggles that led to their release. In their speech they also entreated the people from taking violent actions which they said will be counterproductive to the movement. These welcome rallies were peaceful and televised on the government’s media. It was as if freedom of speech and democracy has finally arrived.
All the above flickered a hope that Ethiopia is finally entering a new era. At least in Oromia, that’s how it was felt. It was hoped an era of transition to a new beginning is on the horizon. Some even hoped that a dialogue with the opposition organizations will soon kick-start, to chart a new beginning. On the eve of the State of Emergency that was how the sentiment was.
However, the party was a short-lived one. On February 15, 2018, out of the blues the Ethiopia Prime Minister Hailemariam Desalegn declared that he was resigning. Before the political pundits could recover from the shock of this news, the next day the Minister of Defense announced that the Council of Ministers has decreed a State of Emergency. Whether there is any connection between the two is anybody’s guess. The important questions is, why such a sudden change within a short period of time? What went wrong? Did anything happen that precipitated this outcome?
Hereunder, against the backdrop of the above, I will look at the justification and the constitutionality for the declaration of the State of Emergency.
What is a State of Emergency?
Almost all modern constitutions have specific provisions related to what is in general referred to as a State of Emergency (SOE). SOEs are also known by other names, such as, “state of siege”, “state of exception”, “martial law” “state of alarm”, “times of war”, etc. When and how SOEs are declared and implemented, which branch of government has jurisdiction and authority, varies from constitution to constitution. Some constitutions have very detailed provisions related to SOEs, while other do not. The Ethiopian one as provided under Article 93, is fairly elaborate. Because there is a great variation between constitutions of countries on the state of emergencies, and how they are defined, we are not going into the details of the differences and similarities. However, the common thread in all constitutions and the common understanding among constitutional scholars is that SOE means a governmental declaration made in response to an extraordinary situation posing a fundamental threat to a country.
There is a general consensus nowadays in the world and in international law that SOE powers should only be utilized in extraordinary circumstances, and even then only to the extent that the situation requires. For example, in her article, LAW IN A TIME OF EMERGENCY: STATES OF EXCEPTION AND THE TEMPTATIONS OF 9/11, Kim Lane Scheppele writes, the state of emergency (exception) refers to a situation where:[A] state is confronted by a mortal threat and responds by doing things that would never be justifiable in normal times, given the working principles of that state. The state of exception uses justifications that only work in extremis, when the state is facing a challenge so severe that it must violate its own principles to save itself. 6 U. Pa. J. Const. L. 1001 (2004).
This short piece obviously is not an academic paper and will not be comprehensive. I have also no intention of going into the never-ending debate of Security Versus Civil Liberties.
On a more specific level, a country could declare SOE based on several factors. Some of these are to deal with emergency situations caused by pandemics and natural catastrophes, environmental calamities, severe economic crises, armed aggression of a foreign state, terrorist acts, coup d’états, insurrections, etc.
The Ethiopia constitution, at Article 93, 1(a) provides the ground on which SOE could be decreed as follows:
The Council of Ministers of the Federal Government shall have the power to decree a state of emergency, should an external invasion, a breakdown of law and order which endangers the Constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel, a natural disaster, or an epidemic occur.
We see here that the Ethiopian constitution has 4 grounds on which SOEs could be declared. Out of the four grounds, it’s worth noting that since the constitution came to existence in 1995, the Ethiopian government has so far declared SOE only on one of the grounds, i.e., when there is a breakdown of law and order which endangers the Constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel.
Thus, based on the general legal understanding of the SOE and even based on the Ethiopian constitution, for SOE to be decreed there should first exist an extraordinary and exceptional situation that poses a mortal threat to the constitutional order. Put in other way, when there is no such an extraordinary situation, imposition of SOE is not justified.
Procedure of State of Emergency under the Ethiopian Constitution
Unlike some constitutions, the Ethiopian constitution is not based on differential approach, i.e., it does not have procedures or rules that apply differently to different types of emergencies. All emergencies whether initiated due to natural calamity or decreed as a result of threat to the constitutional disorder are treated the same and do not trigger different levels of emergency power.
Under the Ethiopian constitution at federal level it is only the council of ministers that can initiate and declare a SOE. However, the Council of Ministers’ SOE decree unless endorsed by the parliamentary act has only a very limited duration. If the council’s decree came into force when the parliament is in session, then it should be submitted to it and endorsed within forty-eight hours of its declaration. If it’s decreed when the parliament is in recess, then it should be brought to the parliament within 15 days of the council’s decree. Thus, at most the council’s decree by itself has only 15 days lifespan. It’s only the act of the parliament that can give it a lifespan longer than 15 days. Therefore, it’s bewildering why the council of ministers decreed the duration of the SOE as 6 month. Deciding on duration, prolongation and ending of the SOE should be the exclusive jurisdiction of the parliament. The council can make its proposal, but to come out and declare the duration of the SOE as 6 month is usurping the power of the parliament.
For the Council’s SOE decree to continue to have a legal force beyond 15 days, the parliament should affirmatively act and by a two-third majority vote adopt the SOE. If such a vote is not secured within the given period of time prescribed in the constitution, the SOE is automatically repealed. No other parliamentary or other act is needed to annul the council’s SOE decree. There is also no any other exceptional situation in the constitution or any other procedure that can be used to extend the council’s unilateral act at most beyond 15 days. More importantly, there is also no provision in the constitution that allow the executive to dissolve the parliament as part of the SOE. Thus, on paper at least, providing a robust parliamentary involvement in SOE, and limiting the unilateral act of the council at maximum to 15 days, is a commendable strength of the Ethiopian constitution.
In theory, for any SOE to have legitimacy and acceptance, there should be a general consensus across the country that there is a condition that necessitated the declaration. There should also be a general support for the government’s action of taking the drastic measure.
There is a mechanism of ascertaining the existence of such a support for the SOE among the population. In democracies this is usually done via the action of the people’s representatives in parliament. Therefore, giving a strong role for the parliament in this process, requiring a supermajority vote for its adoption, is a way of gaging the support for the SOE. And finally not requiring a special act of the parliament to repeal the unilateral act of the council is another procedural protection against misusing and abusing of the SOE by the executive.
Unfortunately, all constitutional protections provided against the abuse of SOE by the executive power can only work in the condition when there is a real functioning parliament. In the Ethiopian situation where the parliament is a rubber stamp existing only to endorse the will of the executive who are under the control of the party, the power given to it in the constitution, however much elaborate, becomes meaningless.
However, due to the changing situation in the country, that is making the regional organizations like OPDO and ANDM more assertive and autonomous, there is a hope that the parliament may also following their lead, for the first time, take a stand by not adopting the Council’s SOE decree. OPDO that has more than 183 votes in parliament, by itself can kill the decree by not voting for it. Without the vote of the OPDO the decree could not muster the two-third vote needed for its passage and implementation.
How OPDO member will vote in the coming session on the SOE will be a litmus test of where it stands vis-à-vis the ongoing Oromo struggle and revival. It’s a time that the OPDO show beyond rhetoric that it stands with the people for democracy and freedom. It’s a time of choice, a time of reckoning for OPDO. OPDO cannot vote for this decree and at the same time claim it stands with the Oromo people.
Even if the number one issue is that this SOE should not be adopted by the parliament, the other concern is about its implementation if it becomes operational. Even though the constitution does not clearly provide the judiciary’s role in checking the excesses of the SOE, at least on paper it stipulates one structure that can oversee and control emergency rule. It provides that the Council should at the time of the decree also establish an SOE Inquiry Board. What role and power the Inquiry Board has is not clear in the constitution. It is not even clear whether it was functional during the first SOE declared in 2016. Again, in the land of absolute party control from where everyone gets their marching order, it’s doubtful how much independent such a body would be and how effective an oversight it provides. But again, at least its existence in the constitution is something that should be noted.
What rights and freedoms are suspended during a state of emergency?
From the outset is should be clear that the declaration of the SOE does not always mean suspending of the constitution. The Ethiopian constitution does not anywhere envisage such an outcome from the declaration of the SOE. In fact, it specifically provides that only political and democratic rights contained in the Constitution are suspended. And these are suspended only “to the extent necessary to avert the conditions that required the declaration of a state of emergency”. So, from the reading of the constitution we see that only some political and democratic rights are suspended, and even those are suspended to the extent necessary. Those suspended include some basic rights, like, due process, freedom of speech, and assembly. Other than that, much of the constitution remains in effect.
It is the burden of the Council to convince the parliament and the public at large that the SOE decree it issued is reasonable and restricts only rights that are necessary to avert conditions that required the declaration of the SOE in the first place. Thus, before adopting the decree, not only should the parliament review the necessity and the constitutionality of the SOE, but also whether the content of the restrictions in the decree are needed and whether they are reasonable to the given existing situation. Thus, even if it adopts the decree, this is a big if, the parliament can also water down the Council’s SOE restrictions in the decree. There is no requirement that the parliament should adopt it “as is” without scrutiny. Extreme precautions are in order here, because, emergency measures develop their own lives and continue well beyond their time of necessity. “Governments should not be permitted to run wild even during the emergency; many extreme measures should remain off limits.” The Emergency Constitution Bruce Ackerman.
As seen above, the Ethiopian constitution other than in general stating, “political and democratic” rights will be restricted, does not list what specific political and democratic rights could be suspended. Instead of listing rights that can be curtailed, what it does is, it lists non-derogable articles, i.e., rights that cannot be suspended during the SOE. This is listed in Article 93, sub-article 4(c).
Those that are non-derogable are Articles 1, 18, 25, and sub-Articles 1 and 2 of Article 39 of the Constitution. The including of Article 1, which is a declaration of the nomenclature of the country, among those non-derogable articles is very odd. This article is not a political or democratic rights article and it is not clear why it is mentioned at all here. If it is mentioned, why were Article 3, “The Ethiopian flag’, Article 4, ‘National Anthem’, Article 5, ‘Languages’, and many others not mentioned? Does that mean that the SOE can change the flag, national anthem, official language of the country?
However, the most serious omission of non-derogable rights in the constitution is, Sub-Article 3, of Article 39. Sub-Articles 1 and 2 of Article 39, are mentioned, but Sub-Article 3 is not mentioned. Sub-Article 3 reads as follows:
Every Nation, Nationality and People in Ethiopia has 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 the state and Federal government.
This is a serious and dangerous omission. The non-inclusion of this sub-article in the list of non-derogable rights, appears to give the Council the right to suspend the federal structure. That is why it’s extremely important for the regional states to be vigilant about this, and for the parliament to review the substance of the decree very carefully, lest the Council using this constitutional silence suspend the power of regional states and impose its rule on them. Even during emergency, the federal structure should not be dismantled. The center-state relations should not be affected by the SOE.
However, the creation of the Command Post, a structure not mentioned in the constitution, to implement the SOE, coupled with the non-inclusion of sub-Article 3, of Article 39, creates a very worrisome situation. To whom are the Command Posts reporting? What is their exact role in the implementation of the SOE? What is the role of the regional government in overseeing the activities of the Command Post? These and related questions, unless early and clearly addressed, could lead to the suspension of the even nominal or formal federal structure during the period when the SOE is in force.
The sweeping power given to the constitutionally shady Command Post goes against the spirit and the letter of the constitution on several grounds. First, as seen above, by grabbing the power given to the regional governments, this superfluous structure could in effect render the federal structure nonfunctional in practice. Second, it is a structure that could under the guise of SOE create a military administration to take hold in the country. The Ethiopian constitution does not provide for the institution of a military rule or administration or institution of martial law during the SOE. Under the constitution, the country’s institutions and political and administrative structures should still function during the SOE. However, the sweeping power given to the Command Post in effect by and large suspends the major part of the constitution and bring about an imposition of a martial law. This is one of the major negative consequences that could follow from the implementation of the SOE.
This brings to the forefront the distinction between SOE and martial law. Not all constitutions make distinction between the two; and the Ethiopian constitution also does not speak about martial law. However, constitutions that reference both, make at least one big difference between the two. Under martial law, government and ordinary courts of law are suspended while in emergency law, government and courts can work as usual. With the power given to the Command Post to implement the SOE, it’s easy to see that we are heading towards what is clearly an imposition of a martial law. As we are going to see below, it is very clear that the basic intention behind the SOE is to stealthily sneak in a military rule utilizing a constitutional mechanism.
Does the current condition warrant SOE?
I believe due to complexities they face, states should, in a very limited situations, have the right to impose SOE. Unlike some writers, especially libertarians, I am not absolutist and I am not opposed to SOE in all circumstance. I am simply stating, before state of emergency is declared, certain serious conditions that threatens the existence of the country should exist. In fact, in some rare situations, the existence of certain conditions could even lead to a justifiable temporal discontinuities of a constitution. Such suspension of a constitution could be justified on the basis of what we call, the doctrine of the law of necessity. Meeting a requirement of the law of necessity is a very high bar, and because the Ethiopian government did not suspend the constitution as such, I am not going to discuss this point.
The specific question we raise here is, whether the current situation in Ethiopia warrants imposing SOE. This is an important question because history is replete with examples when governments without the existence of extraordinary situation posing a fundamental threat to a country use SOE as a pretext or a tool to restrict human rights and civil liberties and ban or restrict political parties, postpone elections, conduct constitutional coup d’état and implement in an indirect way a military rule. In short SOE has often been used as a tool of “power grab” and suppression of political dissent by a certain individual or group.
We have already seen that the hidden intention of this SOE is to establish a military rule. Let’s see here even if its stated reason and rationale for the decree is justifiable under its own constitution. In accordance with the constitution, before SOE is declared, there should exist, (1) a breakdown of law and order, (2) the breakdown should be serious as to endanger the Constitutional order and (3) the breakdown cannot be controlled by the regular law enforcement agencies and personnel. Unless all the three interrelated conditions existed when the SOE was decreed, then it’s not justifiable and not constitutional.
Did such a condition exist on or around February 16, 2018, when the Council of Ministers declared a SOE? In the first place, the fact that most people who wrote about this on social media and elsewhere are questioning the existence of a mortal threat to the country says a volume about the justifiability of the decree. Usually, the threat should be very clear to almost every body and there should be objectively verifiable public worry. The absence of such an overwhelming worry is a clear indication that there is no breakdown of law and order.
When the Minister of Defense came out and tried to justify the SOE, other that talking in generalities about a threat to the constitutional order, he did not put on the table specific facts that warrant taking such a drastic measure. If they say that a moral threat to the constitutional order existed, then this is a question of fact, and they should present the evidence. And it should be empathized again and again that the burden lies on the government to prove that such condition existed. No reasonable person can conclude from the Defense Minister’s news conference that the country was facing an existential threat at the time. He did mention that people were killed, some attacked due to their ethnicity and that roads were closed. However, he did not in detail describe how many people were killed, how many roads were closed, what properties were destroyed, what laws and orders were broken, and more important, he did not show how and why the regular law enforcement were unable to stop the acts.
In fact, had a situation that really posed a mortal threat existed, it will not be the defense minister who would have announced it by a news conference to the country. The Prime Minister or the President himself would have come out and made a televised speech to the whole country about the dire situation in detail and would have tried to rally the population against the impending threat. Because no mortal threat existed, they could not come out and present it in such a manner. The manner in which they declared speaks volume about the veracity of the threat. Moreover, the fact that it was declared by the Defense Minister unintentionally reveals their hidden intention to impose a stealth martial law.
There is no question that in the wake of the SOE there were minor sporadic incidents in some parts of the country. But if you look at the chain of event very carefully, even those were dissipating. The prior market boycotting was called off. The spontaneous rallies were subsiding, the activists were preaching restraint and people were very eager to work closely with the local governments. Due to the release of prisoners the population was in a celebratory mood. Those who were released were preaching nonviolence actions. Rather than rebellion, the atmosphere was festive. On the eve of the SOE decree there was nothing that came close to be described as a breakdown of law and order. There was nothing that threatened the constitutional order.
What existed was not a mortal threat to the country, but an atmosphere of a high level of civic and political engagement. The public rallies with and in support of those who were just released was a demand to the government to open up the political sphere, for more participation, and in short it was a demand for a more democratic rule. In most places the rallies and demonstrations were highly disciplined and peaceful. Even the regional police force were marching along with the people and protecting the demonstrators.
If there was any panic that triggered the drastic measure, and led to a political over-reaction on the part of the government, it was the solidarity and comradery exhibited in the open between the people; it is the expression of high discipline by the people, and it is the huge show of support and response given to the ex-political prisoners. But, unfortunately for the government, the lack of support for it, is not a ground to impose SOE. The cure for legitimacy deficit is not imposition of SOE. That needs a totally different political response. That’s why, as one writer indicated, “We must prevent politicians from exploiting momentary panic to impose long-lasting limitations on liberty.”
If truth be told, in addition to the peoples’ demand for more freedom, the other source of panic that led to this unwarranted draconian measure is the frustration that the oligarchs that had been ruling the country from behind felt coming from the OPDO and ANDM. It is now a public secret that there exists a deep split within the organizations comprising the EPRDF. The TPLF that had been in control the last 26 years is losing its grip on the party. While the power of the TPLF is waning, on the contrary the OPDO’s popularity was swelling. The way it was going, especially because OPDO was listening to the peoples’ demand, and answering some of them, and speaking the people’s language, and acquiring legitimacy, and becoming more popular in its own right as a separate and independent organization from TPLF, there was no question that OPDO was emerging on a collision course with TPLF. Therefore, the SOE was also a maneuvering and an intrigue hatched by the TPLF core to keep the OPDO at a bay and save a power that is slowly but surely slipping from its grip. In short this was a constitutional coup d’état.
Ideally SOE is morally justifiable and defensible only when used to save the constitutional order from subversive illiberal forces that want to create havoc and pose an existential threat to the government and the country. It is not justifiable when used against the people to save a government that has lost its legitimacy. When people are demonstrating against repression and for democratic and civil rights in Ethiopia, the government cannot find its way out by doubling down on repression through the mechanism of SOE. This is just not the right tool to answer people’s grievances. A government that has lost its legitimacy should go ahead and resign and call a new election rather than continue doing what it had previously tried and failed. This is one of the situations when doing the same thing again and again will not bear any new result.
SOE gives such an enormous, relatively unchecked and dangerous power to the executive body. It is a dangerous power because it could easily be abused. That is why it should only rarely be used in a life-and-death struggle for survival. No government should be entrusted with it easily and at will. In Ethiopia, this had already been used one many time without any tangible result. Repetition of the SOE for the second time in less than two years will have a dire long term consequence. The parliament if it adopts the SOE 2.0, will be creating a bad precedence. If it approves it now, what will stop the executive to come to it again and again on flimsy grounds? Machiavelli said it best, in warning the Prince about the consequence of periodically using such a power.
Now in a well-ordered republic it should never be necessary to resort to extra-constitutional measures; for although they may for the time be beneficial, yet the precedent is pernicious, for if the practice is once established of disregarding the laws for good objects, they will in a little while be disregarded under that pretext for evil purposes. Thus no republic will ever be perfect if she has not by law provided for everything, having a remedy for every emergency, and fixed rules for applying it.
For now we are looking to the parliament that will convene in few days to go ahead and strike down this unjustified SOE. But it should be clear that it is not the parliament that is a guarantee against unfettered power, whether it exhibits itself in the form of SOE or not. The remedy comes only from a mobilized citizenry, standing up for democracy.