COVID-19 Pandemic and Ethiopian Electoral Law

COVID-19 Pandemic and Ethiopian Electoral Law
Impasse over the 2020 Election and Transitional Mechanism
1. Introduction
In the event of the downfall of Drogue in 1991, the EPRDF (Ethiopian Peoples Revolutionary Democratic Front) took over power to rule Ethiopia with effective stay in position for 27 years. During its rule the EPRDF violated fundamental human rights; and misappropriated resources (economy) of the country. The Tigray People’s Liberation Front (TPLF) held hegemonic supreme power in all forms with its absolute monopoly power over legislative, judiciary and executive or-gans.
The TPLF controlled defense, security and all other similar structures by which it exercised totalitarian system under its domain. Superficially it claimed to implement democracy and rule of law under which constitutional rights of the individual and the group are ensured. In effect, it acted to promote supremacy of a single people while severely suppressing other peoples. The democratic organizations fighting for the rights of peoples and democracy firmly stood against the suppression and brutality of the EPDRF throughout its 27 year rule.
The armed struggle, political movement, diplomatic maneuver and popular resistance spearheaded by Oromo youth (Qeerroo) were intensified. The Oromo Qeerroo conducted highly developed freedom movement to the extent of surpassing Oromia to motivate the youth of other regions. The popular movement thus intensified created pressure on EPRDF/OPDO to ally with the movement through implementing change within though against their will.
The popular resistance that started in Oromia spread throughout the country exerting pressure against the TPLF – EPRDF to publicly announce for reform in January 2018. Accordingly, Dr. Abiy Ahimed became the Prime Minister on April 2, 2018. There was public trust and desire for transition to democratic system under the leadership of Dr. Abiy Ahimed.
Thus with movement of the Oromo at the forefront, and involvement of other peoples, Oromo militants and struggle of others who in various forms either organized or individually compelled
the government of Ethiopia to start listening to public demands. In fact, a certain group within the ODP/EPRDF too contributed to change of stance in the system. The change (reform) by and large is the sacrifice of Oromo nationals and the public.
Thus the change that has come about under extremely challenging scenario has been expected to bring about free and fair election that would lead the country to a democratic governance.
The Alliance for Multination Federalism (Alliance) believes that the democratic governance is expected to be stable that would ensure livelihood improvement of citizens in which it (the Alliance and its member organizations) and all other forces would play their part. The election scheduled for August 29, 2020 that has been awaited with eager is to be extended due to the
COVID – 19 pandemic. This latest move has inevitably implied “constitutional crisis” in the country. Therefore, this modest piece has been framed in order to give possible way out to overcome the crisis.
To this effect, it is necessary to look into events of yesterday, prevailing condition today, and investigate officials connected with these issues under the FDRE Constitution and cast the way out believed to be central is crucial. Therefore, examining the process of the change that be-gan in April 2018 would be advantageous.
2. Measures the Reformist Group has taken
The promising measures Government of Dr. Abiy Ahimed initially took:
1. Release of political prisoners;
2. Lifting Command Post (state of emergency);
3. Facilitating conditions for all political organizations including those involved in armed
struggle to officially return home and register as political parties to peacefully compete in
the legal environment having their own political positions;
4. Amendment or annul proclamations that have been bottlenecks to build a true democratic
a) Anti Terrorism Proclamation (though members of the OLF are still alleged under it):
b) The Media Proclamation; and
c) Charities and Societies proclamation.
5. Review Election Board and Electoral Procedure Proclamations;
6. Support the Law and Justice Advisory Council of 13 independent legal professionals under the auspices of the office of the Attorney General;
7. Abandon (close down) Maekelawi Prison (3rd Police Station);
8. Allow the media operating abroad and blocked website to operate in the country; and
9. Resolve conflict between Eritrea and Ethiopia peacefully through reconciliation etc. were the measures taken.
Even though this reform created opportunity to openly bring together the public and all political parties, it has still encountered other challenges.
3. Challenges the Reform Encountered
We could categorize the challenges and conflicts into two: They are what are there in general terms and what the EPRDF faced in particular as a political organization and government in power.
Major challenges and conflicts:
There are above 110 or so political parties lacking uniform position on fundamental issues. There are having contradictory stand on “State-Building” and “Nation-Building” as well as suspicion on identities of peoples and that of Ethiopia due to lack of balancing stand to work together. Particularly, the results of protracted struggle of the people, which has made peoples participate in the politics to some extent has been actualized in the Federal system. The at-tempt to dissolve this system to replace it by the age old structure which would keep the entities apart instead of coming together has become one of the major challenges.
The following major challenges have been faced by the EPRDF as a political organization and the government in charge of administering the public:
• Internal power struggles within the EPRDF
This is existence of conflict between organizations in coalition with the EPRDF and within themselves. In due course this has led to TPLF total withdrawal from the Prosperity Party (PP). Since there has not been delineated boundary of power between EPRDF Party and the
Government, reflection of this had been seen in the performance of the government.
• Violation of fundamental human rights
In different regions human rights in general are not still properly protected. Arbitrary detention and killings of civilians is rampant and widespread. Many leaders and members of various political organizations are in detention.
• Tensions between national entities (inter-ethnic tension)
Due to the tensions there have been sporadic conflicts between Oromia, SNNPR, Amhara, Benshangul Gumuz and Somli Administrative Regions.
• Less effort to meet the wish of the youth The strong force behind the reform, that is the youth, had great expectation from the government for livelihood improvement. The government failed to fulfill the expectation.
• Lack of proper re-integration of former freedom fighters
There has been lack of proper demobilization, rehabilitation and reintegration processes of the former freedom fighters (combatants).
• Insufficient preparation on the part of Election Board
Even before COVID-19 surfaced the 2020 Electoral Board of Ethiopia had no sufficient preparation to conduct the election.
On top of existing gaps and weaknesses, the COVID – 19 pandemic occurred even before the Election Board established its structure at lower level.
4. Conditions with the COVID-19
The World Health Organization (WHO) branch office in China reported on December 31,
2019 that a certain type of sickness (pneumonia with unknown cause) occurred in China in Ubei area at Wuhan city. The disease spread to other countries like Thailand, Japan and the Republic of Korea between December 31, 219 and January 12, 2020. On January 12, 2020
China made examination finally explaining that the disease was novel coronavirus. The WHO announced emergency to the world on January 30, 2020. The WHO identified the disease/virus as Novel Coronavirus-n COVID-19 on February 11, 2020.
On March 11, 2020 the WHO announced that COVID-19 is pandemic that has spread world-wide critically affecting health of human beings. On March 16, 2020 Office of the Prime Minister of Ethiopia shut schools; prevented various sports competitions; and suspended public gatherings all for 15 days. On April 8, 2020 Assembly of Ministers of Ethiopia proclaimed state of emergency for five months. This was ratified by the Council on April 10, 2020.
On March 31, 2020 the Election Board of Ethiopia shade doubt on the possibility of conducting election according to the schedule (August 29, 2020) due to the COVID-19. It elaborated that unless the pandemic is tackled it would be impossible to conduct the according to schedule. Based on the announcement of the Election Board, the State Council warned to seek for solution as follows:
“4) The Council should make note that the Board is unable to conduct general election one month prior to the service period of Council of House of Peoples ‘Representatives in accordance with the Constitution; in case there is decision to pass, this decision as well as the document on assessment the Board conducted should be passed to House of Peoples’ Representatives for convenience.” (Taken from announcement of Election Board)
The House of Peoples’ Representatives is elected only for five year term of office shall obviously enter into conflict with the Constitution in their desire to bypass proper and procedural election process. It is highly recommended to examine the situation and reach a necessary consensus.
5. COVID-19 and National Election of 2020: Challenges or the Constitutional crisis
Obviously, the National Election and the various Regional Elections set for August 29, 2020 whereby they share countrywide power with Regional Councils by September has not been conducted.
5.1 Sections of the Constitution over which Conflict arose
In general terms, violation of any article of Constitution of the country is unacceptable. For the present, if the national election may not be conducted according to schedule, the articles that would be violated, which in effect are decisive, are the following:
Article 1 Nomenclature of the State: This Constitution establishes a Federal and Democratic State structure. Accordingly, the Ethiopian state shall be known as the Federal Democratic Republic of Ethiopia. Consequently, a democratic government cannot be expected to exist without election. The government not elected by the citizens cannot be democratic; the first and the least precondition that makes a government democratic is conducting an election.
Article 54.1 Members of the House of Peoples’ Representatives shall be elected by the People for a term of five years on the basis of universal suffrage and by direct, free and fair elections held by secret ballot. When this is not the case House of Peoples’ Representatives cannot be deemed representative of the people and there would not be laws it declares and decision it passes; even it may be there it would not have acceptance.
Article 58.3 The House of Peoples’ Representatives shall be elected for a term of five years.
Elections for a new House shall be concluded one month prior to the expiry of the House’s term. Thus, if the House of Peoples’ Representatives that completed its term of office for any reason is not replaced by the newly elected, there won’t be condition for it to continue func tioning.
Article 61.3 Members of the House of the Federation shall be elected by the State Councils.
The State Councils may themselves elect representatives to the House of the Federation or they
may hold elections to have the representatives elected by the people directly.
Article 67.2 The term of mandate of the House of the Federation shall be five years. The term of office of the House of Federation, as indicated above, shall not be more than five years.
Article 72.2 The Prime Minister and the Council of Ministers are responsible to the House of Peoples’ Representatives. In the exercise of State functions, members of the Council of Minis-
ters are collectively responsible for all decisions they make as a body.
Article 72.3 Unless and otherwise provided in this Constitution the term of office of the Prime
Minister is for the duration of the mandate of the House of Peoples’ Representatives.
Proclamation No. 1162/2019 Based on the Constitution, this proclamation issued to order the national election stated under Article 7.1: Unless and otherwise provided in this Constitution
the term of office of the Prime Minister is for the duration of the mandate of the House of Peoples’ Representatives. The above articles are established in connection with the need to establish democratic governance, and failure to observe them owing to the pandemic COVID-19, will create loopholes and consequent seriously undesirable outcomes.
5.2. In case of prevalence of the chance for extension to administrative period of the State Council (government)
i. Emergency Proclamation
Article 93.1 (a) The Council of Ministers of the Federal Government shall have the power to
decree a state of emergency, should an external invasion, a break down of law and order which endangers the Constitutional order and which cannot be controlled by the regular law enforce- ment agencies and personnel, a natural disaster, or an epidemic occur. Aside this, any condition shall not qualify for proclaiming state of emergency. A failure to conduct election according to schedule for whatever reason shall not be a cause for declaration state of emergency. If pre-vailing conditions reasonably hamper the election to take effect, other solutions should be sought rather than declaring state of emergency.
Even if emergency is declared it is impossible to create obstruction in accordance with Article
93.4 (c): This article of the constitution (No 1) stipulates that the Government of Ethiopia
should be democratic. And a democratic government is established through election. As stated under article 1, articles 8.2,3 and 9.3 again the peoples of the country shall have supreme power and this is actualized through conducting a free and fair election. Otherwise, coming to power through other means or stay in power with extension is prohibited. Thus it means declaring state of emergency beyond the stipulated term of office is contradictory to provisions of the
ii. Dissolution of House of Representatives
Article 60.1 With the consent of the House, the Prime Minister may cause the dissolution of the House before the expiry of its term in order to hold new elections.
This is applied when term of office of the state council due to various factors to shorten the period and conduct election. But it is not meant to extend the period nearing completion. Since dissolution of state council is stipulated in the Constitution, in the absence of jurisprudence in law and constitutional discourse where there is no need to dissolve state council, taking the measure to dissolve state council is constitutionally wrong. This would be possible within the period of office but not to extend it. Thus, dissolution of House Peoples’ Representatives can-not be taken as Constitutional resolve. iii. Amendment of the Constitution
Article 104 Amendment or enrichment of Constitution
Amendment of a given Constitution may take effect when two third of House of Peoples’
Representatives, two third of Council of Federation or when majority of members of the Council of Regional States support the proposal, and after its presentation for discussion and decision to the concerned organ and the public for amendment.
Article 105 Amendment of the Federal Constitution
All the rights and freedoms stipulated under Chapter Three of this Constitution, this article, as well as article 104 may be amended only under the following conditions:
All the Regional State Councils approve the amendment by majority vote;
The Federal House of Peoples’ Representatives support the amendment and approve by two thirds majority; and When the House of the Federation, by a two-thirds majority vote, approves the proposed amendment.
All provisions of this Constitution other than those specified in sub-Article 1 of this Article can be amended only in the following manner:
When the House of Peoples’ Representatives and the House of the Federation, in a joint session, approve a proposed amendment by a two-thirds majority vote; and When two thirds of the Councils of the member States of the Federation approve the pro-posed amendment by majority votes.
It would be fair to say it is Constitutional to amend the Constitution to resolve the current crisis. However, its acceptability may fall into jeopardy due to the fact that it is taking place at the end of period of office of the State Council.
Even though other preconditions may be met to amend the Constitution and cultural aspects, since it is impossible to present to all the people for discussion due to COVID – 19, the chance is none to that effect. As the result, since the Constitution does not have a prior solution, and though it is believed that Constitutional amendment is the solution, it would not be the solution since under the current reality it demands deliberation and decision of the wider public.
IV. Interpret the Constitution
Article 83.1. All constitutional disputes shall be decided by the House of the Federation.
Article 83.2. The House of the Federation shall, within thirty days of receipt, decide a constitutional dispute submitted to it by the Council of Constitutional Inquiry. According to renowned persons of the Constitution and the Law it, the interpretation of either the Constitution or the Law may be required when it is clear that an article is there about the issue or when there are two articles over same issue and they contradict each other. In short, not in the absence, but presence but due to lack of clarity, or when it contradicts, it shall be re-solved through clear interpretation. What we have currently encountered is neither lack of clarity nor contradiction but the solution to the impasse is absence of an article over the issue. In order to fill this gap then the solution would be to amend the Constitution by adding the missing or other solution should be sought but interpretation cannot be the way-out. As the result, the attempt to find solution by interpreting the Constitution amounts to amending the Constitution. As to make interpretation of rather an issue as big as amendment of the Constitution, the
people or different entities that represent the people (political parties, civil societies …) do not have any chance for participation. Then in the Constitution, Law or the existing work procedure does not allow the people or various parties to take part in it.
We have strong reservation that this interpretation of the constitution cannot involve the people but if done so by a single party it would lack acceptability and create great obstacle to this country. As long as there were no similar instances presented to the Council of Federation so far, it would not provide Constitutional interpretation (it refused to abstractedly review and in-terpret the constitution). Since it may mean there were situations it would have rejected the interpretation, but it accepts to interpret this time, it is going to create suspicion. What we make note from the foregoing conditions is that interpretation of the Constitution does not have y legal backing to resolve the current crisis. And the solution lacking interpretation of the
Constitution is always rejected.
6. Summary of Constitutional Review
1) It appears postponement is mandatory due to COVID-19 pandemic.
2) There is no form of the Constitution to rely on to extend term of office. The statement that EPRDF previously amended is not acceptable.
3) In accordance with article 9.2 of the Constitution, all citizens, organs of state, political or-generations, other associations as well as their officials have the duty to ensure observance of the Constitution and to obey it. Therefore, it should be decided by the people for peaceful ex-istence but not by decision of a single party.
7. Problem emanating from illegal extension of term of State Council
Extension of the term of office aside Constitutional provision: Article 9.3 It is prohibited to as-sum estate power in any manner other than that provided under the Constitution. As the result,
it is not Constitutional provision of a country but international agreement that could be put un-der an article. Article 9.4: All international agreements ratified by Ethiopia are an integral part of the law of the land. Article 10: Human and Democratic Rights. It means the measure would violate the Constitution.
An example to this is what the AU Charter stipulates:
Chapter 8 Sanctions in Cases of Unconstitutional Changes of Government
Article 23.5 Any amendment or revision of the constitution or legal instruments, which is an infringement on the principles of democratic change of government.In the Universal Declaration of Human Rights the Declaration was proclaimed by the United
Nations General Assembly in Paris on 10 December 1948 (General Assembly resolution 217 ).
Article 21.1. Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
Article 21.3 The will of the people shall be the basis of the authority of government; this shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures. Thus, it contradicts with clear procedure.
8. Our view for the way-out
Even though one of the solutions is to set up transitional system, we do not believe it would be easy to do so at this point in time. Thus, it requires by de facto to give a defined period to the executive organ of this government to continue with the reform towards political settlement that is based on consensus. Therefore, we present the following idea for the settlement.
The base for the basic points on which the idea for the way-out is set:
Whereas we believe election cannot be conducted as scheduled because of COVID-19; Whereas as it is stipulated under article 9.2 of the Constitution: All citizens, organs of state, political organizations, other associations as well as their officials have the duty to ensure observance of the Constitution and to obey it. We believe this is true. Since this helped us to fundamentally attempt to shift to democratic system for all during the last few years, the extension should be done in such a way that the base of this Constitution and sovereignty of the country shall not come under question;
Whereas the foreign policy should not put under question the protection of benefits of peoples
of Ethiopia; and protection of sovereignty of the country and its promotion;
Whereas we agree on the contribution of the country in diplomatic relations with IGAD, AU and UN is not obstructed, this government should by de facto build consensus for regional and global legitimacy;
Whereas the government should swiftly maintain peace in the event of violation of sovereignty of the country; Whereas the party in power has fallen short of its initial promises and has been using the organs responsible to protect the Constitution and the rules towards its own political benefits while detaining leaders and members of other political parties; take into consideration the falling short of hope and trust of the public;
Whereas in general since we believe the current crisis affecting the country should only be re-solved politically within the framework of the Constitution. Now therefore, based on the above stated points, the Government (Executive Body) may be ex-tended for one year but shall not proclaim laws and decrees. It is necessary to have binding political convention that enables other political parties to take part and to ensure proper oversight of the process in order to build democracy and help create sustainable peace in the country. The proposed central issues for the convention are:
1. To establish Council of Foreign Relation
 This is believed to inspire domestic trust and gain international legitimacy.
2. To establish coordinated national security council or Committee for monitoring the implementation of the Security arrangements
 This would be to avoid the defense force, security and the police in political involvement.
 To balance the bureaucratic, technocratic, security and judicial actions with the aim to limit the influence of the regime; and
 To create civil order and end violence, while ensuring that all security and intelligence forces would be subject to control by the abovementioned monitoring bodies.
3. To ensure democratic building institution such as Election Board
 Establish or protect the autonomy and authority of independent judiciary, electoral board and independent media that could hold the executives accountable.
 Procedural limits on how the government can act in order to prevent arbitrariness, corrupt
 tion, oppression, discrimination, and the misuse of public office for personal gain.
4. To establish a body that work on the problem created because of the disparity between State building and Nation building in order to create national consensus.
5. To create a body that would monitor the implementation of the convention
 To limit the quest of any further extension.
 To conduct next election during the month of May as usual than during rainy season in August.
We shall present details of responsibilities and system by which these parties would operate. Alliance for Multination Democratic Federalism (Alliance)
April 2020, Finfinnee/ Addis Ababa