Copyright U. Mattei, 1995.

[This article was first published in The Cardozo Electronic Law Bulletin in 1995 at:: http://www.jus.unitn.it/cardozo/Review/Constitutional/Mattei2.html ]

 Table of Contents

Introduction

If you ask a comparative lawyer to take a look at a "new" code or constitution, the answer that you are more likely to get is that there is not much "new" in it. This sort of reaction happens with the new Ethiopian Constitution too.

Of course, this is true in general, if you look at the law as a worldwide phenomenon of social organization. The number of truly original laws and institutions (and of constitutions, of course) is very much limited. It has always been easy for comparative lawyers to find a certain number of paradigmatic (or leading) experiences that are followed and/or adapted worldwide⁽¹⁾.

What can be very new for a given country, and appears so for scholars concerned with its particular legal system, looks most times like a "deja vu" for comparative lawyers.

The new Constitution, to be sure, is a big change in the Ethiopian constitutional tradition. To much regret, however, short from putting Ethiopia as a frontrunner of a new and ripe African Constitutional tradition, it locates it within the mass of countries that, for one reason or another, follow the rhetoric (part of) the structure, and many of the categories of the American model in a more or less conscious attempt to import the strongest version of the western conception of the rule of law.

The new Ethiopian constitution, in my mind, offers to the scholarly community an occasion to ask fundamental questions such as: is the western rule of law a desirable goal for an African Country?

What are the fundamental structural and cultural arrangements that a legal system must offer in order to make the rule of law work as a legitimate problem-solving device? Can a Constitutional document, although a very sophisticated one, provide, if left alone, the basis for the rule of law? Was it an unrealistic dream to expect from Ethiopia new and original constitutional arrangements able to face ethnic tensions and problems of development outside of a dangerous intellectual dependency from the western concept of the rule of law. 

The Ethiopian Constitution of December 8, 1994 is a new wall made of old imported bricks. How solid such a wall will result in front of the tremendous pressure that it will have to face, is a question that it is too early to answer. I argue here that, given the bricks of which it is made, there is not much to be optimistic about.

1. Getting rid of the African legal tradition one step at the time: 1987 and 1994 Constitutions.

Many scholars argue that a non-ethnocentric classification of the major legal systems in the world needs to give up the old tripartition between common law, civil law and socialist law. In particular, the role of legal pluralism should be taken into account because many countries of the so called third world do share this particular legal style^{( 2)}. Africa is no exception within the third world. The Horn of Africa is no exception within Africa and Ethiopia is no exception in the Horn of Africa.

Pluralism, however, falls short from offering a structural qualitative criterion of distinction between the Western Legal Tradition (WLT) and the different legal traditions in the world⁽³⁾. A complementary perspective focuses on the main characteristic of the western rule of law: that of a legal process separated in principle both from the religious tradition (lawyers and priests are different social actors) and from the political process (lawyers and politicians perform different jobs)⁽⁴⁾. In non-western legal traditions either one or both these distinctions are absent.

In Ethiopia, the political, religious and legal processes were deeply intermingled during the Negus regime. Both the 1931 and the 1955 Haile Selassie's Constitutions were almost "cynical" in their realism. The emperor was recognized full political religious and legal power. Religion as well as force was the source of legitimation of the Negus. This was possibly the strongest antidote to political fragmentation in the hands of the Amhara ruling class⁽⁵⁾.

The Marxian turn that was taken after the Derg revolution (1974) went a step ahead in separating different social functions. The Stalinist regime of Mengistu Haile Mariam, of course, did not proceed any step in the direction of the rule of law and of the separation between law and politics. The 1987 Constitution however made clear that Mengistu was not claiming any religious power. Law and politics were separated from religion. In this sense it was a step forward in reaching the separation between the three spheres of social control that we assumed typical of the western rule of law⁽⁶⁾. Of course, it has been argued that the change between the Negus and the Mengistu regimes was just nominal. While no signs of limitation of the sovereign power appear in the 1987 Constitution, Marxian ideology was just proposed as the new state religion. It is however undeniable that a traditional Ethiopian (or more broadly African) source of legitimization and of political unity was lost.

The final step is taken in the 1994 constitution whose task appears to be introducing the "rule of law" in Ethiopia. Thanks to the help of foreign experts, not only the clear separation between law and religion is confirmed. For the first time in Ethiopia, the political leadership is subject to the law. The legal and the political processes are finally separated. Even the military is kept aside of the political scene. The Western Legal Tradition has found its way all the way to Addis Ababa.

Everybody who puts a value on political unity may be worried. It is not granted any more by a religious monarchy. It is not granted anymore by a Marxian egalitarian ideology. It is not granted anymore by unrestricted political\military leadership. The enthusiastic western reaction to the reduction of the inflation rate may not be something appealing enough for the people to substitute the rule of tradition and the rule of politics as effective means for keeping unity.

While some scholars may welcome this remarkable achievement, in this paper I will take a rather different perspective. I will argue that this evolution is just another example of an ethnocentric and historical episode of cultural imperialism. It is the result of intellectual dependency, the last but not least dangerous, between the power relations in postcolonial Africa.

It is likely that the result of this constitutional evolution, inherently foreign to the African structure of power and decision making, will simply result in another piece of unapplied written legislation.

The new Constitution locates itself clearly in the modern (or modernized) layer of the law. It is at this level of the legal system that it must be analyzed: and this is why it is likely to remain largely unapplied. Chances are, however, that this remarkably sophisticated constitutional document, the product of an enlightened western brain trust, will create serious damages in a political scenario which is already complicated and dramatic enough.

In particular, I see problems arising from an American-patterned rhetoric of rights and of competition, the foundations of an ethnic federalism extremely dangerous in Africa as elsewhere, the institutional weakness, and the unbearable complexity of the constitutional organization.

2. Some Background

The political background of the new constitution is too well known to be discussed here. Important to our purposes is only that none of the political and ethnic forces which make the opposition to the Ethiopian People's Revolutionary Democratic Front (EPRDF) had participated in the Constitutional making All opposition parties, most important those representing the Amhara and Oromo groups (38 and 35 % respectively) withdrew from the electoral competition.

The new Constitution is therefore supported politically and ethnically only by the Tigrynia minority which counts less than 10% of the population⁽⁷⁾.

The following alternative was therefore open for the EPRDF leader and now president Meles Zenawi:

• A constitution supporting a strong leadership, imposed by political force, with some risks as far as the international support is concerned. 
• Or, a constitution which shows the willingness to share power, in the hope of eventually obtaining larger internal consent and with the certainty of western sympathy.

The second option was followed thanks to the remarkable enlightenment of the Tygrine elite.

Some less sympathetic commentators have detected behind this choice a divide-and-rule strategy, a privileged attitude towards Eritrean independence, and a way out in case of political defeat. This last interpretation seems to be supported by the provisions on secession, which introduce a major limit to the correct use of the word "federalism" in the new denomination of "Federal Democratic Republic of Ethiopia". Indeed, as it has been immediately pointed out⁽⁸⁾, secession and federalism are incompatible categories. A comparativist may only add, at this point, that a framework for a rather weak executive, breaks with the tradition of African leadership. This in turn may mean two things. Either that the structure of power in the books does not correspond to that in action, or that this constitution introduces so many incentives to secession that the unity of Ethiopia as a Federal state is not going to last very long.

As it is very well known, all the federal experiences that proved successful in the course of history do introduce an effective centralizing corrective (such as presidentialism) to the allocation of substantial powers to the states. On this particular point we will come back later.

3. An Academic Constitution?

A good experiment would be to cancel a few provisions of the constitution such as those in which the word Ethiopia is contained, or such as Art. 47, which contains the list of the member states of the Federal Democratic Republic of Ethiopia, and then ask what links such a document to the Ethiopian reality. If there were many such links, this document could not be proposed as a constitution for a different country. Otherwise, changing the word Ethiopia, we could have a model constitution apt to fit all the realities.

The treasure hunt for typically Ethiopian (or even only African) provisions gives indeed meager results. Four provisions (Art. 32,1 Art. 40, 5; Art. 41; Art. 44), granting the right of free establishment in any place of the country, are what remains of the cruel practice of Mengistu (but of other dictators too) to relocate the population.

Art. 28 reflects the past tragic experience of the "red terror" by banning the statute of limitation for crimes against the humanity.

A few provisions such as those on private vs. public property (Art. 40) do reflect a typical post-colonial arrangement, precluding the de plano substitution of the word Ethiopia with Norway or with Europe. There is not much especially Ethiopian in all of this, however, and such mixed provisions on property rights may be found also today in post-communist Eastern-European countries not to speak about other African or Asian countries.

As I've pointed out elsewhere⁽⁹⁾, this structure of property rights does not break at all with the colonial structure, nor is it rooted in African peculiarities but just reflects the colonial relationship of power as inherited by the post-colonial leading elite in front of the ordinary citizens. What it may be remarked here is how communist African regimes were able to introduce colonial structures even in those contexts such as Ethiopia where (political) colonization has been a very marginal phenomenon⁽¹⁰⁾.

Finally, another couple of articles try to reflect legal pluralism: in particular Art. 34, 5 "the Constitution shall not preclude the adjudication of personal or family disputes by religious or cultural laws ..." and Art. 78, 5 "The Council of People's Representatives and State Councils can establish or give official recognition to religious and cultural courts". While the former just reflects an unavoidable reality, the latter is rather braggy since it assumes a relationship of (effective) power between official and unofficial law, which has never been the reality anywhere in Africa.

These few provisions were all I was able to locate that would make this constitutional draft unsuitable for a European or for a North-American country. Indeed, the impact of American constitutional rhetoric is staggering. It is not only the rhetoric and the fundamental federal structure of the U.S. Constitution which is reflected here. There would be nothing unusual in this. After all, the U.S. constitution has always been the most influential constitutional document in the world. What I'm observing is the impact of the rhetoric of American modern law professors which appears rather ridiculous out of context.

A cursory look to the constitution will give you the flavor of what I'm talking about: Art. 9 tells us that the constitution is "The supreme law of the land". Art. 14 assuming the necessity of a trio of fundamental values: "life, liberty and property" becomes " Life, liberty and the security of the person". Art. 19 introduces the Miranda warning made famous by the American movies: the Ethiopian person arrested has "A right to remain silent and to be notified that any statement that they make or evidence they give may be used against them in court". The "right to privacy" is not only generally guaranteed (Art. 26) but also specifically to the accused (Art. 20). " Double Jeopardy" is prohibited (Art 23). Of course " the equal protection of the law" is granted (Art. 25)... Many other examples of American constitutional language can be found.

Talking about fashionable provisions (within the American academia) we will find that the press should not only be free but "diverse" (Art. 29, 4); women are entitled to "affirmative" action in order to be able to "compete on the basis of equality with men in political, economic and social life" (Art. 35,3). The problems that may arise from the competition between men and women should be resolved "in the best interest of the child" (Art. 36,2). Ethiopians should have a "Right of Access to justice" which, of course, can be effective only with the introduction of class actions (Art. 37, 2).

A right to a "clean and healthy environment" (Art. 44) completes the list of the rights formulated with academic rhetoric. Other non-American fashionable ideas find their way in the constitution: between these the Scandinavian idea of the "ombudsman" (Art. 55), which in the eighties became a "must" for any proposal claiming to be progressive. The right to "sustainable development", whatever it may mean, found its way in the constitution as well. A very progressive section on social rights is added. It would be difficult for a Scandinavian country to afford its implementation.

4. A brief sketch on the institutional framework and its western models.

If the rhetoric and the flavor of the Constitution are clearly American, the fundamental structure of government is rather mixed.

As I have mentioned, the fundamental "federal" arrangement reflects the U.S. model (some knowledgeable commentators claim that there is an Indian influence at play here) with all the residual powers allocated to the Member States (Art. 52,). The parliament is divided into two chambers which have rather different constitutional roles. The Council of People's Representatives, elected for a term of five years on the basis of universal suffrage and by direct free and fair elections" (Art. 54, 1) is the legislative branch.

The Federal Council, whose members are elected by State Councils (also established by the Constitution) is composed of "Representatives of nations, nationalities and people" at least one for each of them, plus an additional member for nation or nationality for each one million of its population" (Art. 61).

This body has a crucial role in a Federation under constant threat of secession because it has the role of supreme interpreter of the constitution and of referee of all the ethnical (including border) disputes. That is why provisions a little less vague on its composition (particularly in Africa where the sentiment of the population is not precise) would have been advisable. It is however true that the role and the actual composition of the Federal council can not be discussed if the key question of the nationalities and of their representation is not resolved first (Art. 47, 1,2).

The president (Art. 71) has a rather symbolic role (like the Italian or the German). The executive Power is vested in the prime minister and in the Council of Ministers which are politically accountable to the Parliament (Art. 72,1). Political parties are mentioned many times in the constitution. From an Italian perspective this is just another evidence of the very weak position of the federal executive in Ethiopia, and of the major problems that may arise out of it. On parties I'll come back in the conclusive remarks.

As far as the judiciary is concerned, the mixed nature of the systems is even more clear. Following the U.S. example, "The supreme Federal Judiciary authority is vested in the Federal supreme court" (Art. 78, 2). The same provision grants the possibility of establishing federal lower Courts.

State Courts will adjudicate federal questions if such a lower judiciary is not established. Special Courts are prohibited and tenure of office is guaranteed in order to guarantee the independence of the judiciary. No salary guarantee is introduced to give effectiveness to such independence.

The mixed nature of the judiciary is showed by

1. the typically French civilian power of cassation that is given to the Federal supreme Court aside of the regular "final" appellate power and
2. by the denial of constitutional adjudication to regular courts.

Such power of constitutional adjudication, following the German model, is exercised by a Constitutional Court, called the Council of Constitutional Enquiry (Art. 82) which receives jurisdiction incidentally from judges and parties when an issue of constitutional law arises. How this power of constitutional adjudication actually relates with the "power to interpret the constitution" emphatically given to the Federal Council by section 1 of Art. 62 is not clear.

Two final remarks should be added here, both pointing to a very problematic applicability of the constitutional framework. Judges are politically appointed by the Council of People's Representatives on proposal of the Prime Minister on the basis of a selection procedure made by a Federal Commission for Judicial Administration (Art. 81). This is yet another organ in the already full arena of law officers. This overwhelmingly complex legal and constitutional structure will absorb a tremendous amount of the very scarce manpower of jurists. Particularly, if the dual levels of State and Federal Courts are thought to be fully fledged.

5. Some final remarks.

The federal Constitution confirms the mixed nature of the modern layer of the Ethiopian legal system.

This characteristic was already at play with Haile Selassie whom, as it is very well known, was freely borrowing legal institutions from the French (Civil Code) and from the Anglo-American tradition. This mixed nature is probably the product of the weak colonization which affected Ethiopia. In African States which experienced a strong and long lasting colonization by one single power the flavor of the legal system has not changed after decolonization.

The American model that dominates today's Ethiopian Constitution is the leading legal system worldwide.

Most of its success is due to its effectiveness in protecting individual rights in the course of the two world wars⁽¹¹⁾. The rhetoric of individual rights, of individualism and of competition that is produced by the American model could not be more foreign to the African mentality.

A strong and ideological assertiveness of rights can have a very destabilizing impact on the Ethiopian society. This is in particular true when such rhetoric touches such crucial problems as self determination and secession. A Somali legal scholar, Ahmed Botan, has conveyed with bitterness this idea with a sad joke which was circulating in Addis Ababa during the negotiations for the peace in Somalia: "Somalia and I against the world. My clan and I against Somalia. My family and I against my clan. My brother and I against my family. Me against my brother!"⁽¹²⁾.

A well developed rule of law based on individual rights can not live outside of a constant process of mediation, that in more advanced western societies is given by the legal culture. In Ethiopia at the moment there is no legal culture and the state in which legal scholars are abandoned in the University of Addis Ababa does not allow many hopes for the future. It is not rights assertiveness that should be borrowed from the American experience: it should be the ability to arrange continuity and change within a flexible institutional framework accepted by a number of very different people.

In Africa, rights assertiveness is particularly dangerous if it is understood as rights of a clan to be asserted against the others. The traditional decentralized ethnic African society endorsed and endorses a decision-making style that could not be more far from the western right assertiveness. It was a culture of mediation, of unanimity, of peacekeeping not much different from the international law which governs the international community⁽¹³⁾.

Possibly the Ethiopian constitution opens to this model by granting an important right of secession.

Such right, however is in contradiction with the very idea of a federalist constitution and a lawyer should point out this contradiction. If the right to secession will become a possible way to find new arrangements of coexistence more simple and suitable to the African reality than a very complex American-based mechanism of federalism is an open question. It is sure however that federalism to work requires a high degree of political and legal expertise that not many countries in the world enjoy today. It should be added, however, that ethnical federalism particularly when ethnicism gets represented by political parties (politicized ethnicism) is the worst of the possible worlds.

If Africa desires to borrow from western institutions, which I do not believe to be a sound policy, I believe it should do so after a serious comparative analysis of the pros and the cons of each institutional alternative. If there is something that the American model can teach, it is the absence of any ethnic element in an efficient federalism. What is crucial is to detect the best institutional level in which decision making should be exercised. From this point of view, some hopes may come from Art. 55, 6 which mandates the Federal legislature to codify in civil law only to the extent that "The Federal Council deems necessary to maintain and sustain one economic community".

This idea or perhaps its lighter application, the so called principle of subsidiarity which is nowadays leading the European integration, may be considered as alternative ways to create federalism without pointing all the stress on the ethnical level.

Another secret of the success of the American political system, which can be crucial in multiethnic communities, is that it has protected the minorities in their fundamental political rights in a rather satisfactory way, thanks to its high level of legal culture. Even more important, the American political system has worked out an electoral system that attracts minority views into the mainstream, rather than causing the proliferation of parties.

Despite the presence of nearly one hundred nations within it, Ethiopia is a rather unitary nation state if compared with other African realities⁽¹⁴⁾.

Ethnicity should not be disregarded, as it happened in the past history, but we should not fall into the opposite extreme of interpreting every and all African social dynamics as a function of it.

To make this constitution work, there is much need of intermediate circuits of decision making between the State and the ethnic group. A serious political and institutional effort should therefore be made, when and if the constitution will be actually applied, to keep low the number of political parties by means of ad hoc electoral laws. This would be the only possible way to defeat the "politicized ethnicism"⁽¹⁵⁾ because it will force ethnic political groups to seek coalitions before participating in political elections eventually bringing to the birth of two major parties.

As it has been noticed in a recent article, it is within the political party that the whole African art of mediation and of search for unanimity could find a "modern" substitute for the village meeting and for the other traditional decision making devices⁽¹⁶⁾. Leadership within major parties may eventually reduce some of the problems created by the potentially weak government described in the constitution.

Of course all of this leads us to question the assumption that the rule of law as distinguished from politics and the rule tradition is a good achievement in Africa in general and in Ethiopia in particular. 

Footnotes

Related Documents: Ethiopian Constitution of 8 December 1994 / "Patterns of African Constitution in the Making", Ugo Mattei / Biography of Ugo Mattei

[Note for authors: Bookmarks are installed for each of the numbered sections, i.e. 1., 2., 3., 4., and 5.]