A Rare Interview with Alemayehu Fentaw
(Translation of The Reporter Newspaper, Issue of Wednesday 16 January 2008, Amharic Edition)
On the one hand, the fact that Article 8(1) of the FDRE stipulates that “All sovereign power resides in the nations, nationalities and peoples of Ethiopia”, Article 39(1) provides that “Every Nation, Nationality and People in Ethiopia has an unconditional right to self-determination, including the right to secession” , and Article 34(5) stipulates further that “This Constitution shall not preclude the adjudication of disputes relating to personal and family laws in accordance with religious or customary laws, with the consent of the parties to the dispute” demonstrates that legal pluralism is intimately intertwined with multinational federalism.
On the other, the nine regional state governments are yet under construction whilst the federal government is full-fledged even after 13 years. Although all States have their own constitutions pursuant to Article 50(5), which reads, “The State Council has the power of legislation on matters falling under State jurisdiction. Consistent with the provisions of this Constitution, the Council has power to draft, adopt and amend the state constitution,” they are not very different from their federal counterpart in all respects. The States have been hardly capable of executing the powers directly bestowed upon them, let alone exercising the power to interpret the constitution vested indirectly with them. The federal system fares not so well as it appears on paper. Though it seems that the pressures that were brought to bear upon Haile Selassie’s and Dergue’s regimes have been eased with respect to the current regime by virtue of the fact of its promulgation of the FDRE constitution, the problems still persist. Questions that need to be addressed within the constitutional framework abound.
Mr. Alemayehu Fentaw teaches at Jimma University Law Faculty and serves as Deputy Editor-in-Chief of its law journal. He is also head of the Research and Publications Office. In a recent issue of the journal, he has published an article about legal pluralism and multinational federalism. We have talked to him on matters relating to his research and others concerning the right of self-determination and problems arising from implementation of such a right.
Reporter: Does the law go hand in hand with the politics? Many have doubts.
Mr. Alemayehu: In order to assess the success and failure of the multinational federation in Ethiopia, we have to look at two factors. First, we need to look at the constitutional provisions in search of answers for such questions as what does the legal framework look like, what’s the role of the federal or central government, what does the division of powers look like, what does the division of revenues look like, and what does the division of development opportunities look like? The second important point is to look at the question of how the constitution is being implemented. The first question calls for a legal answer whilst the second question calls for a political answer. The constitution doesn’t disclose main problems when it comes to the issue of enshrinement of federal ethos, albeit for lack of clarity and ambiguity in relevant parts. It seems to me that this can be worked out in due course. It can be improved through constitutional review. Even though Ethiopia stands as the only state in the world to uphold the right of secession at the moment, it used to be recognized as a right in the constitutions of Yugoslavia and Soviet Union in the past. What marks Ethiopia off is the right of secession is wedded to political pluralism. When we raise the question of how effective political pluralism is, so far it has been members of the EPRDF coalition and its affiliates that hold majority seat both at the federal and regional level. Therefore, because an absolute dominance of a single party and a unitary modus operandi are discernible within the framework of political pluralism and multinational federalism, it can be concluded that the history of the constitution is that of utter failure for the past 13 years. How can we sustain the federal system? When is it that the federal system moves beyond its unitary modus operandi and starts to function as politically and culturally pluralist? We can hardly sustain the federal system unless we cultivate progressively political pluralism and cease to persist in this unitary-looking modus operandi.
Reporter: What’s the contribution of political parties to consolidating political pluralism?
Mr. Alemayehu: One of the central pillars of democracy is political pluralism. And for that to materialize we need liberal democratic political parties. Doctrinaire political parties have no place here. The role these political parties play is critical to sustaining the federal system and the realization of the cultural communities and the states. Our political parties need to be robustly competitive. For that, they need mature outlooks and well-thought-out agenda. Unfortunately, such political parties are so few in number and at times they are regarded, in effect, as totally non-existent. Many of them are so fragile that they can’t even last longer than the particular election for which they were formed. Many wither away as a result more of internal frictions than governmental pressure. To guarantee the rights of all cultural communities and states, new and robust political parties have to be organized, the existing ones need to examine themselves, and the incumbent should be such that it can win without pressure and fraud. Not even the Constitution of the United States was complete when it was adopted in Philadelphia. It took its current shape in due course through the combined efforts of the public, the judiciary, political parties and the democratic institutions. We can all focus more productively on building consensus around the existing constitution, instead of starting all the time afresh, by making amendments and revisions. To have to start from zero all the time is counter-productive. Politics or public affairs have to be conducted according to the rules of the game. Everyone should contribute his part to the formulation of laws, policies, and strategies by engaging in public forums. Political parties should also be able to serve the public best by formulating and articulating alternative well-thought-out policies and procedures and shaping the attitudes of their constituencies. They should find a way of serving the public permanently rather than creating public clamor during and after election campaigning. Or else, even the federal system might not last long. Perhaps, unless the army overthrows the government as the federal government gets weaker, it is unlikely that opposition parties will assume power through electoral victory. If so, we’ll go back to totalitarianism. Since the army cannot handle the nationality question properly, it will fragment along ethnic lines resulting in total dismemberment of the country called Ethiopia. Therefore, our political parties must carry on their peaceful struggle without losing sight of their vision and hope.
Reporter: Political parties complain that as long as the House of Federation does not actively participate in constitutional interpretation, the government is centralizing and consolidating its powers. They are also suspicious of the independence of the judiciary and the electoral board. Since this is a dangerous attitude, what do you think is the problem? What’s the solution?
Mr. Alemayehu: The constitution provides for the independence of the judiciary and the electoral board. We say a board that is nominated by the Prime Minister and confirmed by the House of Peoples’ Representatives is far from being independent, just because EPRDF is the ruling party. There’s nothing wrong in principle. The same procedure holds for the opposition when they win a majority seat in parliament. Its institutional and personal independence derives its support from the law. But we should all strive for its proper political implementation. The problem lies in the fact that the ruling party runs the state machinery single-handedly. So the question is whether it puts any pressure on the judiciary and the electoral board. And this paradoxically can only be resolved not so much by amendment as by winning an election in a free and fair election.
Reporter: In a recently published work of yours, you have indicated that the States have problems with exercising whatever rights they have been vested with. How is this problem of incapacity to demand their proper powers back from the federal government to be seen in light of the absence of federal governmental institutions established for the purpose of facilitating and promoting such activities?
Mr. Alemayehu: When we look at the issue of division of powers, say, legislative powers, the States are vested with not so insignificant powers. Of course, the major ones are granted to the federal government. Article 52 of the Constitution provides that all powers not given expressly to the Federal Government alone, or concurrently to the Federal Government and the States are reserved to the States. They must execute this overly broad, albeit unspecified, powers. The rights of the cultural communities and the States can only be safeguarded when they have effective state governments organized into legislative, executive, and judicial bodies that creatively take into account linguistic, cultural, political, and economic diversity. The only law that the States have enacted so far is family law. They could enact criminal laws, but they didn’t. Of course, state constitutions are already in place. For instance, the constitutions of 3 States of the US predate the federal Constitution. State legislatures have powers over matters falling within their jurisdiction. The can extend greater protection to their citizens than are obligated under the federal Constitution. To say that the rights and protections are similar with that of the federal government is not to say that they are simply redundant. The federal constitution lays down the minimum below which they can’t succumb. That they can enact criminal procedure codes can be established by constitutional construction. Generally, there are problems with exercising whatever powers they have been vested with. It is my hope that ongoing efforts at institutionalization by the federal government will encourage the States to exercise their powers.
Reporter: What accounts for the inter-ethnic animosity among the Oromo, Amhara and Tigre, apart from power rivalry? What are the causes of inter-ethnic conflicts among university students from these ethnic groups?
Mr. Alemayehu: More often than not, political movements start in universities. Students usually succumb to irrationalism and instinctiveness. If you consider the student movement of the 1970s and compare it with the most recent ones that took place in Addis Ababa University during my student days and those that take place in Jimma University where I am teaching currently, they don’t raise agendas of national scope. A minor incident escalates into a major conflict that could otherwise have been prevented through dialogue. Questions of the kind student activists of the like of Walelign Mekonnen, such as land, were seen to raise can hardly be found today. I did not see the identity question being raised. Nor did I see questions relating to wider legal frameworks (such as land and nationality). No single new question of national importance has been on the agenda. One question that is worth recalling and I deem to be relevant is that concerning the illegitimacy of the presence of the Federal Police forces within the university campuses. That aside, we have not seen the student body at the forefront setting national agenda, except being manipulated by parties with hidden agenda or external forces. A case in point is the inter-ethnic conflicts that arose in Jimma and Arba Minch universities. That did not bring out questions that could not be resolved within the constitutional framework.
Reporter: There’s an occasion where the students raise questions concerning the right of self-determination. They complain that all cultural communities are not being treated equally as recognized by the constitution. The fact that the federation is dominated by TPLF led to protests and the prevalence of mistrust among Oromo, Amhara, and Tigre as well as among citizens at large. How can we avoid this problem?
Mr. Alemayehu: It seems to me that the relationship that exists among member parties of the EPRDF coalition is puppet-like. By the year 2001, EPRDF faced a major crisis. The crisis enabled the 4 EPRDF member-parties and the 5 EPRDF affiliated-parties dominated States to undertake review of their State constitutions. The issue of one party dominance within the EPRDF coalition concerns more than anyone else, individual members of the respective party members or affiliates of the EPRDF coalition, as the case may be. If the conflict is among members of these parties, then the university is the right place to take their fights to. The university has to remain independent of any partisan or religious movements. The university is the last place to host an intra-party political wrangling.
Reporter: Characterizing the Amhara as harboring a hang-over ambition of restoring its past hegemonic position, the Oromo as secessionist and anti-Ethiopian, the Tigre as being instrumental in maintaining the status quo of the incumbent, and the role-play as accuser and accused is a dangerous trend. What should be done to nip this kind of mentality in the bud?
Mr. Alemayehu: The university student was supposed to be far more advanced than his community, educate his community, and advocate the rights and liberties of his community. But it is the community, as things stand at the moment, which leads the student. How on earth can a student point his finger at a fellow student for a past he is not responsible for and that’s totally gone based on alleged unwholesome historical inter-ethnic relations? It falls short of any nomenclature as struggle or civic sensibilities. That’s why university students are said to succumb to irrationalism. Even entertaining the idea of secession should not hurt anyone’s civic sensibilities inasmuch it is deemed to be a right in our legal system. A student from Tigray does not enjoy special benefits by virtue of his ethnicity. The problem stems from the lack of a culture of tolerance in our country. The government must address this issue properly. And the assignment should not be confined to researches undertaken within the academia. It should also be undertaken by the political parties as long as they also serve as political laboratories. Identity politics has to be regarded, whether by the incumbent or opposition parties, as a goal and not an end in itself.
Reporter: How do you see the contribution of the society to the consolidation of the federal system?
Mr. Alemayehu: It should engage as actively as it did in May 2005. It should demonstrate that sovereignty lies with it by exercising its voting rights in elections. It should, instead of giving up on hope, carry on believing that it can correct mistakes made by the government or by the opposition in the past. It should persist in its belief that its quest for peace, democracy, development, and liberty are not to be delivered or abrogated by the government or by a struggle waged by the political parties. Every individual and cultural community has to fight for its rights within the bounds of the legal framework and continue to believe that the rights guaranteed to them by the constitution can never be abridged or abrogated by anyone. The activities of civil society organizations working in the realms of cultural, economic, and political rights have to be promoted. And that’s when politics becomes a public affair, as opposed to a private affair of 3 or 4 individuals.