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