Adjudication of FDRE Constitution

Ethiopia, embracing Federal system of governmental structure to create a country of equal Nations, Nationalities and peoples and to put an end to authoritarian rule by democratizing the Ethiopian state and society as a whole, this being a precondition for durable peace and development. The constitution of Ethiopia explicitly acknowledges that the federal government and the states shall have the three governmental organ of legislative, executive and judiciary (Article 50(2)).

The Ethiopian Constitution mandated the second chamber – the House of the Federation, a non-legislative house – with the authority to interpret the constitution (Article 62, 83 and 84). Comparatively speaking the mandate given to the House of the Federation in Ethiopia is exercised by the courts in general and of the Supreme Court in particular in case of United States and India, in case of Germany, this task is exercised by a special Constitutional Court. “In Switzerland the power of interpreting the Constitution is divided between the federal tribunal and the people. The former is empowered to decide the constitutionality of the laws of cantons, while the latter decide the constitutionality of the federal laws”. 

This paper will try to assess an overview of Ethiopian constitutional adjudication on a bird’s eye view and will continue to look at in to other countries model in relation with federal system of governmental structure alike to Ethiopia and provide an explanation and detail analysis of the mandate and function of the House of the Federation – a second chamber responsible to interpret constitution and solve disputes happen between states. Finally I will conclude by summarizing the whole idea of this paper and recommending my point of analysis.

2.1. AN OVERVIEW OF ADJUDICATION OF FEDERAL DEMOCRATIC REPUBLIC OF EHTIOPIA’S CONSTITUTION

The Ethiopian federal system of Governmental structure comprise with two constitutional frame works in federal and regional state members.  The federal and regional states have their own legislative, executive and judiciary organs. The legislative organ of the government consists of the two houses of parliament called the House of People’s Representatives and the House of the Federation. The House of Peoples’ Representatives is the highest authority of the federal Government. The House of the Federation with a mandate to interpret the constitution organizes the Council of Constitutional Inquiry and strives to find solution to disputes and misunderstanding that may arise between states.

The Ethiopian unique features of constitutional adjudication came in to being for the reason that the governmental structure laid its foundation on the conception of federal form of government based in ethnic formulation. One of the major characteristics of federal type of governmental structure is to maintain division of power.

The current model of constitutional adjudication in Ethiopia operates in Federal and regional or state level, the Council of Constitutional Inquiry and the House of the Federation are operates in federal level and the Constitutional Interpretation Commissions, Council of Nationalities and Councils of Constitutional Inquiry operates at the regional level. The Council of Constitutional Inquiry is mandated to provide a legal advisory role and to assist the House of the Federation in time of when constitutional interpretation and disputes provoked or required. According to article 84, the Council of Constitutional Inquiry is only exercising its power on submitting its recommendations thereon to the House of the Federation. 

In regional level a mandate alike the House of the Federations, granted to the Council of Nationalities (in the Southern Nations Nationalities State) and to a Commission for Constitutional Interpretation in the remaining nine regional states and the Council of Constitutional Inquiry operated the same mandate in regional level. “In general, the present system of constitutional adjudication in Ethiopia at federal and state level includes the House of Federation, The Council of Nationalities, the Commission for Constitutional Interpretation and the Council of Constitutional Inquiry”. Let us look in to detail process of how the these organs operates, in case of constitutional dispute that the House of the Federation received first and submit the case to the Council of Constitutional Inquiry for further explanations and recommendations according to the mandate given in article 20 of Proclamation 250 if there is a need for interpretation. The next process after analyzing the need of interpretation is called investigation, and finally the Council provides a non – binding advisory recommendation to the House of the Federations. If the case presented to council could not qualify the need of constitutional interpretation and disputes, the council may remand the case to the lower courts, though the party has a right to appeal directly to the House of the Federation with in sixty days. After cases are analyzed, investigated and submitted to the House of the federation as a recommendation, the decision should be finalized within thirty days. But, because of the non – binding nature of the recommendation provided by the Council of Constitutional Inquiry, the House of the federation can reject it. Here comes the conflicting nature of the House of the Federation in case of interpreting constitution and settling disputes, because the only autonomous body to receive and reject cases and no other body to regulate excess power exercised by the legislative organ. In this regard the court can only apply the constitution but have no mandate to interpret the Constitution which clearly stipulates that the current Ethiopian Constitution deny courts the power of judicial review and become toothless and only engaged in routine application of the laws enacted by the legislature.

2.2. POWERS AND FUNCTIONS OF THE HOUSE OF FEDERATION

The House of the Federation in Ethiopia is a second chamber of legislative body encompasses all the Nations, Nationalities and Peoples of Ethiopia from every ethnic group. The rational -behind the mandate of constitutional interpretation and settling disputes between states and the federal government exclusively given to the House of the Federation is that of a representative nature seen only through the Nations, Nationalities and Peoples of Ethiopia. By considering the exclusive mandate given to the House of the Federation, it means that its decision considered law to be applied in similar cases that arise in the future.

The House of the Federation also engaged in a very sensitive issue of self-determination case to settle disputes and finalize a decision.

2.3. COMPARATIVE ANALYSIS AND FINDINGS

The Ethiopian model of non-judicial review to exercise the power of constitutional interpretation by its nature and sense is a unique one unlike western judicial – review model in the form of Supreme Court or constitutional court. A nation with non-judicial review model of exercising constitutional interpretation are blamed as undemocratic except in Finland – a country using a non –judicial review model but a democratic culture and protection of human rights are well developed. A nation like China, exercise the constitutional interpretation mandate has given to the Standing Committee (SC) formed by the National People’s Congress (NPC) both stand for the interest of Chinese Communist Party (CCP). The Former Soviet Union (U.S.S.R) can be an example of a nation with federalism governmental structure alike Ethiopian system. The Former U.S.S.R established its government by creating two chambers called Chamber of the Union and the Soviet of the Nationalities as the highest legislative body like Ethiopian House of Peoples’ Representative and the House of The Federation. In case of U.S.S.R, the Marxist ideology was dominant and make the judiciary organ weak because of the ideology viewed the judiciary as bourgeois institution and fear to use law as tool of the ruling class. The judiciary organ rather became dependent on political bodies. The Marxist mark and influence shown in Ethiopia’s constitution by disregarding judiciary role of the system to review and interpret constitutional issues in another way show how much the drafters of the constitution became Marxist proponents. A country with non-judicial review system and develop a stable democratic nation is Finland with no constitutional court. The mandate of constitutional interpretation given to the Constitutional Law Committee (CLC) appointed by the Eduskunta. The court in Finland does not interpret but apply constitutional law and the system is successful on providing a human rights protection and Democracy. The reason why the Finland system becomes effective is that Finland’s political stability has allowed the country to take the time to refine a fairly unusual system.

2.4. DEMERITS OF ETHIOPIAN NON – JUDICIAL REVIEW SYSTEM

The non – judicial review system of Ethiopia brought its own bottlenecks and become a characterized in a different faces or approaches. One of the features is the independence of the House of the Federation. In case of defining and interpreting fundamental law of the country, the governmental organ expected to be free from any political affiliations. The House of the Federation (HOF) as a political organ compiled with members of the ruling party called Ethiopian Peoples Republic Democratic Front (EPRDF) become dependent and influenced by the executive. Issues like self – determination is a sensitive issue which needs an independent decision from the HOF, instead the mandate is given to the organ not independent and surely influenced by the executives a political organ composed of the ruling party. One of the case happened at the time of May 2005 election period become an evidence to ascertain dependent nature of the House of the Federation. The Coalition for Unity and Democracy (CUD) as an opposition political party raised a constitutional issue that the Late Prime Ministers use of exertion of power by decree banning public demonstrations thereby curbing the constitutional rights of assembly for a month following the disputed election. After the Federal First Instance Court received the case and referred to the Council of Constitutional Inquiry, the Council returned back the case to the court and affirmed that the matter did not need constitutional interpretation. This clearly indicates the demerits of the system that Ethiopia is following.

Another kind of limitations exercised by the non – judicial review approach of the case of Ethiopia is that of the lack of the Check and Balance role of the government organs. One of the sign to affirm existence of democracy in a given state is the check and balance role and system that separate the power of the legislatives, executives, and Judiciary body and limit them to exercise unlimited power. In Ethiopian case the EPRDF a dominant political party and ruling party certainly dominates the executive and use excessive power over other branch called judiciary.

Summary and Conclusion

The current constitutional adjudication of Ethiopia in general lack specific mandate of the Judiciary in order to foster peace, security and democracy in the country. The system needs a fundamental revision and structural reform. In time of exploring major ideas and concepts of constitutional adjudication in FDRE constitution, I came up by concluding that our approach of interpreting constitutional matters and settling disputes on sensitive political issues only depend on the House of the Federation independent of executive branch dominated by a ruling political party and make the Judiciary organ weak and toothless brought clear and vivid setbacks for constructing a well flourished democratic society. The in existence of the reality of check and balance role of the three chamber of the government will lead to the dictatorial regime and dysfunction of the whole system to meet the demand of the society at large.