Alemayehu Fentaw
The Nondelegation Principle
The doctrine of nondelegation is explicit or implicit in all written constitutions that impose a structural separation of powers. It is usually applied in questions of constitutionally improper delegations of legislative powers to the executive. In 1690, John Locke (1632-1704), one of the most influential political philosophers of the modern period, wrote that legislators “can have no power to transfer their authority of making laws and place it in other hands.” According to John Locke, “The legislative is … sacred and unalterable in the hands where the community have once placed it; nor can any edict of anybody else, in what form soever conceived, or by that power soever backed, have the force and obligation of a law…” Furthermore, “[t]he legislative power cannot transfer the power of making laws to any other hands; for it being but a delegated power from the people, they who have it cannot pass it over to others…nor can the people be bound by any laws but such as are enacted by those whom they have chosen and authorized to make laws for them…the legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have.”A century later, in 1789, the US federal Constitution provided that “all legislative Powers herein granted shall be vested in a Congress of the United States.” A little more than a hundred years later, in 1892, the Supreme Court declared in Field v. Clark: “That Congress cannot delegate legislative power to the President is a principle universally recognized as vital to the integrity and maintenance of the system of government ordained by the Constitution.”
James Madison compared the delegation problem to the power of creating executive offices. Madison argued that the Constitution “has not only given the Legislature the power of creating offices, but it expressly restrains the Executive from appointing officers, except such as are provided by law….the President is invested with the power of filling those offices; does it follow that we are to delegate to him the power to create them?
Madison’s comparison suggests that another factor in weighing delegation problems may be the number of new offices or positions that the statute gives the executive power to create.
Nevertheless, in 1989, nearly a century after Field v. Clark, the Supreme Court in Mistretta v. United States upheld an essentially unconstrained grant of power enabling an administrative agency to set guidelines for federal criminal sentences, offering the stark observation that “our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.”
Many an architect of the modern administrative state was full well aware of the constitutional implications of their handiwork. A case in point is James Landis, who contended in 1938 that the administrative state “springs from the inadequacy of a simple tripartite form of government to deal with modern problems.” For Landis, modern government “vests the necessary powers with the administrative authority it creates, not too greatly concerned with the extent to which such action does violence to the traditional tripartite theory of governmental organization.” Put differently, if the needs of a modern bureaucracy come into conflict with the Constitution, too bad for the Constitution.
My aim in this paper is two-fold. First, I aim to establish that the Constitution of the Federal Democratic Republic of Ethiopia, like its counterpart in the United States, prohibits the kind of delegation of legislative authority that took place in Ethiopia a few days ago. Second, I aim to establish that the House of Federation, which is vested with the final say on the issue of un/constitutionality of legislations in Ethiopia, is capable of identifying unconstitutional delegations if it puts its mind to the task.
The Nondelegation Principle under the FDRE Constitution
The constitutional principle of separation of powers underlies the current Ethiopian federal system of government. The FDRE Constitution contains many provisions that deal with the separation of powers. The Constitution vests legislative, executive, and judicial powers in three distinct institutions. To keep parliament’s legislative power separate from the executive and judicial branches of government, the Constitution limits parliamentary delegation of legislative power to the other branches of government. It contains provisions about such matters as the formalities of legislation, the making of treaties, the appointment of unelected government officials, and the accountability of the executive. But there is no provision that expressly forbids the delegation of legislative power like the US Constitution. The U.S. Constitution does not address the issue directly. The main constitutional provision cited in
support of the nondelegation doctrine reads simply, “All legislative Powers granted herein shall be vested in a Congress.” Commenting on the US Constitution, Gary Lawson wrote “The absence of such a provision is often taken as an argument against a strong nondelegation principle; even some of the nondelegation doctrine’s most articulate champions seem bothered by the absence of a nondelegation provision. But the search for a nondelegation clause is fundamentally misguided because the federal government is a government of limited and enumerated powers. Therefore, the proper question to pose is whether the Constitution affirmatively grants power to a particular institution of the federal government to perform the act under consideration.” In the same manner as the US Constitution, Art.55(1) of the FDRE Constitution provides that “The House of Peoples' Representatives shall have the power of legislation in all matters assigned by this Constitution to Federal jurisdiction.” Besides, Art. 50(3) stipulates that “The House of Peoples' Representatives is the highest authority of the Federal Government. The House is responsible to the People.”
Furthermore, Art.76(3) provides that “In all its decisions, the Council of Ministers is responsible to the House of Peoples' Representatives.” The only Constitutional provision that may arguably interpreted as granting to the Executive the power to legislate on the organization of the Executive is Art. 77(2). It reads: “It shall decide on the organizational structure of ministries and other organs of government responsible to it; it shall coordinate their activities and provide leadership.” Even this Article does not say that the Executive has the power to enact a law on the matter. It only states that the Executive has the power to “decide” on the issue under consideration. This does only mean that it has to submit its decision for reorganization or whatever of the structure of the ministries and other organs of government to the House for approval.
By virtue of the principle of enumerated powers, any action by the Executive (the Council of Ministers headed by the Prime Minister) must fall within a grant of power to the Executive in the Constitution. The Constitution grants to the Executive a number of specific powers. The opening provision of Art.72 provides: “The highest executive powers of the Federal Government are vested in the Prime Minister and in the Council of Ministers.” One problem that figures in prominently in connection with this provision has to do with the definition of the term “executive power.” What exactly does it mean to have executive power? The Constitution identifies three distinct governmental powers- legislative, executive, and judicial-but never defines them or their respective boundaries. The absence of a precise definition does not mean that there are no boundaries between the three governmental powers. The Constitution clearly assumes the existence of such boundaries by vesting different powers in the different institutions. And as was pointed out by Madison in The Federalist, he did not consider the problem of drawing boundaries as a reason to avoid the task altogether.
Although the precise frontiers of the executive still remain blurred, we can say with some confidence that the essence of the executive power is carrying into effect – executing, if you will – the laws of the nation. The Constitution grants the Council of Ministers the power to execute the laws but not to enact a law. So, the problem is defining where execution ends and enactment begins. Execution is not a mechanical task. The meaning of “executive power” is broad enough to include some measure of rulemaking discretion, even some measure of interpretative discretion.
The next problem is to consider the issue of whether there are limits on what parliament may delegate. The principle of enumerated powers serves as a blanket ban on unilateral acts by the Executive without parliamentary authorization. What if parliament grants such authorization? Is there a limit to the authority that parliament can properly vest in the Executive by legislation? This constitutes the heart of the matter, i.e. the nondelegation problem.
The Rubber-Stamp Parliament and Delegation of Powers
In the first week of its fourth year, the House of Peoples’ Representatives has enacted a new legislation that authorizes the Council of Ministers to decide the fate of federal executive organs. The House voted the passage of the bill with 269 votes in favor, 68 against and one abstaining. As per the new law, the Council from now on, can establish, reorganize, merge, divide and even close down federal executive organs such as Ministries when it finds it necessary. The law also gives the Council power to change any executive organ’s accountability. By virtue of this proclamation, the Executive secured unlimited legislative powers to reorganize federal executive organs.
According to the new law amending the Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation No.471/2005, the Council of Ministers will now have the final say on matters regarding dissolution, establishment, or reorganization all federal executive organs in the country without parliament exerting any form of supervision or approval.
The EPRDF-dominated rubber-stamp parliament violated the Constitution by endorsing a prima facie unconstitutional bill that was initiated and masterfully drafted by the Executive on First Reading despite strong objections by parliamentarians from the so-called loyal Political Opposition. Of course, ironically enough, this newly enacted amendatory legislation could not have been passed without Constitutional amendment, even so at the risk of setting aside, ad infinitum, the Constitution and the democratic principles of separation of powers and non-delegation of powers enshrined therein. The ratio legis behind this piece of legislation is nothing but "entrench[ing] the dictatorial power of EPRDF,” as was rightly observed by Bulcha Demekssa.
In an all-too-embarrasing argument that backfires, albeit meant to defend the passage of the Bill, at himself, Berhanu Adole, Head of the Prime Minister’s Office, told the House “If it is not to exaggerate the essence of the article, it doesn’t introduce as a new procedure as it is already stipulated in the Constitution that the ruling party may restructure the executive organs.” He went on to say that “the practice isn’t a new one, it was the same during Emperor Haile Selassie period where the Emperor reorganizes the organs by issuing regulations. The Emperor did not take a historic blame and neither will we, nor do governments of many other nations.” If the self-same provision has already been in the Constitution, how does the introduction of this legal rule into the new proclamation improve its legal quality as the proclamation is only inferior to the Constitution? What Adelo failed to understand, and does not seem to get it in a million years, is that the House is different from the ruling party in principle, though it is undeniably dominated by EPRDF. The equation does not hold. The mere fact that EPRDF has the majority seats in the House does not entitle EPRDF-dominated House to give away legislative powers falling within its proper province to the Executive. The Constitutional provision he was alluding to is Art. 56 that stipulates “A political party or a coalition of political parties that has the greatest number of seats in the House of Peoples' Representatives shall form the Executive and lead it,” which is irrelevant to the issue at stake. Furthermore, what strikes me as odd is his comparison of the current practice with that of the Imperial regime of HIH Emperor Haile Selassie. This is so much revealing, as he interestingly and unawares divulgates the imperious project, common to the Emperor and EPRDF, of taking away and consolidating all governmental powers into their own hands.
To show that there has not been any doubt or ambiguity as the regards the issue of whose power it is to enact such legislation, it suffices to quote the closing clause from the Preamble of all of the four amendatory proclamations, which reads: “NOW, THEREFORE, in accordance with Article 55 (1) of the Constitution of the Federal Democratic Republic of Ethiopia, it is hereby proclaimed as follows.” Therefore, the issue flies in the face of the above clause from the preamble. What remains now is to unmask the motives and this can be done more efficiently by raising the following questions than by answering. Why introduce a change now? If it properly belonged to the Executive, why did it fail to exercise it until this time around? Why not without enacting a law? Why not claim it back by submitting it before the House of Federation for Constitutional interpretation?
The passage of this bill is simply against the two well-established constitutional principles delegata potestas non potest delegari -a delegated authority cannot be again delegated, and delegatus non potest delegare - a delegate or deputy cannot appoint another, whatever the motives.
The writer, Alemayehu W. Fentaw, was teaching law at Jimma University Faculty of Law and, currently, is an Advanced MA Candidate in Peace and Conflict Resolution at the European University Center for Peace Studies, Stadtschlaining, Austria. For comments, he can be reached at andreasalemayehu@gmail.com
Editor's note - Before he left for Austria on a scholarship, Alemayehu Fentaw was a lecturer at the Law Faculty of Jimma University. A few days prior to his departure, Alemayehu was interviewed by the Reporter newspaper on such issues, among other things, like federalism, regional governments, multi-party democracy. While elaborating, Alemayehu said that opposition parties may never seize power in Ethiopia unless the army stages a coup and removes the regime. The Reporter made that remark the headline of the story. Trouble began to haunt Mr. Alemayehu and family.