June 23, 2013 ·4 Comments
In this article I will attempt to examine whether or not Ethiopia as a federal state structure has put in place all necessary mechanisms so that it functions as it supposed to do so. Practical examples in other countries constituted as federal political state structure will be cited repeatedly to give our readers a full grasp of the complex legal issues at hand. This is in particular important for those who are not legal trained and find difficulty to understand the legal question at hand. In the first part of this article, however, I will try to give the historical, political context in which these legal frameworks have arisen.
To begin with it is worthwhile to state that, since 1995, Ethiopian’s political administration has been organised into a federal system that is similar to other arrangements in other part of the world, such as the united states of America (50 states) Germany (16 states) Argentina (23 autonomous region and 1 autonomous city) Australia (6 states and 3 territories) Austria (9 states) Canada (10 provinces and 3 territories) and India (28 states and seven union territories) to mention a few. The Ethiopia Federal Democratic Republic is organised into 9 regional states and 2 city administrations.
After the overthrown of the military regime in Ethiopia in 1991, the armed rebel group that came to power has spent the majority part of the last two decades in advancing an ethnically based agenda and as a consequence partitioned the country into regional administration based on the ethnicity of the people. As a result, the nation was separated in to nine regional administration and two city administration. The latter being metropolitan cities, the government thought it would be better to classify them as autonomous city administrations with special rights for the people inhabiting the rural area around each city. It was also a political manoeuvre to minimise rivalry between/among the ethnicities inhabiting the vicinity where the city is located. For example, Dire Daw autonomous administrative city was fashioned to appease the Somali and Oromo people’s claim on the city. Both ethnicities are the people that populate the rural area that surround the city. Also the city is a home to many other Ethiopian ethnicities from all over the Ethiopian 9 administrative regional states. However, there is a plan by the federal government to label more cities and towns in this category, which in my opinion clearly encroaches against the primary reason to split the country in to ethnically base administrative regions. The question that everyone has to ask at this moment is whether or not the ethnical oriented policy relentlessly pursued by the present regime has run out of steam. Since the purpose of this article will not be deal with this issue, it will suffice to introduce to the readers the name of these regional and city administrations at the outset. These administrative regions are namely Afar, Amara, Benishagul- Gumuz, Gambella, Harari, Oromia, Somali, South Nation/nationalities and Tigrai regional states as well as Addis Ababa and Dire Dawa city administration.
The federal and regional governments have each their own legislative frameworks. But the federal government’s constitution and other subordinate laws are considered supreme law. That means any law that contradicts the federal government’s laws will be null and avoid. In the last two decades, yet, it has been experienced that when regional governments directly implements directives, orders, proclamation and constitutions in contrary to the supreme law of the country, the institutions responsible for the observance of the federal constitution has not provided any remedy. Sadly this is still the case despite recent change of will clearly displayed by the Prime Minister Haile Marriam Desalagn and some of the federal parliamentarians who had spent most of the last twenty years as parrot or rubber stamp for the EPRDF. This is still the case. Although the Federal Government has recently established a public ombudsman and Human Right Commission, their effectiveness has been seriously undermined by the lack of political power to support their sanction. These institutions as the federal government’s establishments entrusted with the monitoring of the contradiction or violations of the supreme law of the land, gloomily have not performed their tasks. Being the supreme law of nation, all federal laws have to be complied by the regional ministerial and governmental bodies. As there is in the first place a division of responsibility between federal and regional governments, the regional governments must ensure that the laws they legislate grant more rights than the federal law. If, however, it gives less rights it would be null and void. In a state structure where there is division of power among three branches of states: namely; the legislative, the judiciary and the executive, it is an internationally recognised legal principle that the three branches of the state, namely, the legislative, i.e., the parliament, the executive, i.e., the ministry of council and the judiciary, i.e., the supreme court of the Ethiopia, are required to check and balance each other in carrying out their individual powers. In some cases, the federal courts is required to review a law that is issued in contrary to the constitution and if it finds any legislation that goes against it, it is required to quash such legislation as an unconstitutional.
From experience, however, the Supreme Court of Ethiopia has never exercised its constitutional power due to concentration of power on the executive and lack of political will to cede some part of the control. The House of Representatives has also acted as a rubber stamp for the political ambition of the executive. In the last two decades, there was rarely any challenge to the late Prime Minister, Meles Zenawi two decades hegemony. Nonetheless, following the recent discussions in the federal parliament, it is possible to see a change of practice. Many loyal Ethiopian People’s Democratic Front diehard parliamentarians who have in the past simply sustained blind support for any policy put forward by the executive branch of the government have shown some reluctance to accept any legal motion that they consider unreasonable. A case in example is the rejection some parliamentarians showed to misrepresentation of the exact size of Amhara regional state’s population by the Ethiopian Central Statistical Bureau. In the past, the Central Statistical Bureau blatantly stated the Amara regional people’s population declined due to the scourge of AIDS epidemic without any substantive research that supports its claim. This of its own accord is equivalent to racism and breach of the Ethiopian Federal constitution. This time around, on the contrary, the parliamentarians did not simply remain silent, but challenged the assessment of the Bureau and rejected its report. This is a good precedence for the Ethiopian parliament. They must put the country’s interest before the wrong EPRDF ethnically based policy.
Theoretically, it can be said that the Ethiopia Federal Democratic Republic constitution is one of the most advanced legal instruments that contain all features that characterise a modern constitution. The Ethiopian Federal Democratic Republic supreme law, i.e. the constitution and other subordinate legislations issued by the highest Federal government House of Representatives are considered the supreme legal framework and they applies to the nation as whole and to all regional states, the Addis Ababa and Dire Dawa City administrations.
The Ethiopian federal Constitution determines the powers and responsibilities of the federal government and its branches as well as what powers and rights are given to the regional states and the people. The highest legal authority at the federal level is the Supreme Court. The House of Representatives creates and passes bills; the President signs them into law after it is presented by the councils of ministers to which the prime minister is the leader.
Regional State Laws
However, State laws are only in effect within that particular state. They can be either superior to or subordinate to federal law, depending on the issue at hand. State law can never reduce or restrict the rights of an Ethiopian citizen, but it can afford regional state residents more rights. Likewise, state law cannot undermine the responsibilities of citizens at the federal level, but it can assign them more responsibilities at the state level. Like the federal government, each state has a constitution that supersedes all other state laws. State laws vary significantly among the states, and the residents of one state can have more or fewer rights or responsibilities than the residents of another state.
It is important to understand that in order for the federal system to work, the states need to cooperate with each other. The question that arises at this juncture is if the Ethiopian Federal constitution the human and civic right Clause (Ethiopian Federal Constitution, Article IV, Section 2, Clause 1, also known as the Comity Clause) requires each state to treat citizens of other states equally with its own citizens. Recently it was widely reported a number of regional states passed directives or order that required Ethiopians with different ethnicities but have long domiciled in the region to leave and sometimes evicted from their land forcefully. The federal law stipulate any Ethiopian regardless of his/her ethnicity has the right and freedom to work, live, reside, and carry on any business as long as he or she complies with the particular regional state’s laws and regulations. Evictions of Ethiopian citizens due to their ethnicity are against the spirit of the Ethiopian Federal Democratic Republic’s constitution and international treaties the country is a signatory to.
On the contrary, the federal Government has failed to strictly comply with its legal duty in the past. In particular, the former late prime minister, Meles Zenawi usually defended such action simply for political purpose. The obliviousness is sometimes deliberate and other time unawareness. From the government’s side it has both political and economic dimensions. The regimes that reigned in Ethiopian in the past hundred years had implemented policies and strategies that changed the reality at the grassroots level. The former regimes executed many policies which favour a particular ethnic group. These policies range from privileges to take land and use the state machineries for benefit of one particular ethnic group. To change this, the current regime did not openly adopt a legal means to change the inequality at the ground. Rather it purposely ignored all actions that have purpose to serve this end even if it goes against own constitution and laws. A best example is the human right violation the Somali regional state special police (also known as Liyu police) perpetrating on the innocent civilians in the regional state. According to many human right organisations, the notorious liyu police of Somali regional state have arrested without due process of law many innocent people, carry out torture, extrajudicial killing and forced resettlement. The regional state’s political, economic and cultural assets are appropriated by the single clan-Ogaden. This is a copycat action of the EPRDF dominate ethnic party, the Tigrain People’s Liberation Front (TPLF) does on the other part of Ethiopia. Nevertheless, in a few occasions, the Federal Government has set a red-line in which it had been forced despite its non-intervention policy. Non-intervention is a corner stone principle in a system arranged in federal system. Albeit, this does means that the federal government has to remain tight hand when its own fundamental laws are trashed by the regional states. To illustrate my contention let me cite a best example I have personally been a witness to. In the early 90s, the Oromo Liberation Front’s foot soldiers, to which the EPRDF made a coalition government with massacred many ethnically Amhara people in Gara Mulata, in a place known as Badano, Eastern Oromia.
Implication for the business
Similarly, the harmony of law in the whole Ethiopian has a significant implication not only for politic but also for flourishment of good business practice and this is crucial since the country is striving to become a lower-middle-income country in the next two decades. At the moment there is no clear and lucid practice in business inter-stately. For example, there is no clear practice what will happen for a company registered in Amhara Regional State wishing to trade in Somali regional state. At the moment, the practice is that the company has to apply for licenses in every state it wants to operate. There is no doubt such way working procedure will make business to incur more cost which will be passed to the consumers adding to price inflation. Besides such practice will create bureaucracy and discourage the smooth operation interstate business. The House of Federation in collaboration with the regional states have in the past organised many nation/nationalities days in around eight regional states in the past. The next will be held in Somali Regional State in December this year. This exercise has an empty political gesture when one takes into account the many hurdles deliberately set by each regional state to create seamless cooperation between/among regional states.
Theoretically the practice should have been a company formed outside a particular state cannot be prevented from doing business in another state, unless the company intends to perform activities that are illegal within that state. Most business entities are created at the state level, and the laws that regulate corporate governance and shareholder rights are determined by the state of incorporation.
On the contrary the system is clearer in other part of the world where federalism is adopted as state mechanism. For example, in the United States of America, a business entity formed outside the state, will be considered as a “foreign,” while a business formed under the laws of that state will be called a “domestic” business. In theory, each state ought to consider a business formed anywhere outside their borders to be “foreign,” so that from Somali regional state’s point of view, an Oromia , Amhara, Kenyan, south African or Chinese company are all equally “foreign” and subject to the same laws that admit foreign companies. Therefore, a business is free to find a state with favourable laws for corporate governance, incorporate there, and register to do business in other states.
Double taxation issues
A harmonised taxation system is a prerequisite for operation of business. On the contrary in a country where every state and village has different taxation systems, it is a scarecrow for investors the nation requires to achieve its development. A fragmented taxation mechanism will result in double taxation and it tantamount to the “killing of the goose that lays the golden egg”. Tax payers are cash cow for state. The government must encourage business community to set up small scale industries as sources of income. International Monetary Representative in Addis Ababa ranked Ethiopia as the third in countries in the world that pursued state dominated economy. In other words, it is the third largest state-driven economy. On the contrary, as far as private investment is concerned it is among the last six world countries. This is not health for the Ethiopian economic development and it goes against its own five year Growth and Transformation Plan currently underway. Taxation is one of the important areas where each state must work with the other to harmonise their legislation. To illustrate my contention, let us take a trade who just want to open a business in Gambella Regional State but its office’s Headquarter in Benishangul-Gumuz regional state. It is good when different businesses distribute their headquarters in different places of the country to reduce unequal development between regional states. This will help regional state to increase their coffer.
Theoretically when a state law affords a person more rights than federal law, the state law is legally presumed to prevail, but only within that state. This means state law will always supersede federal law when the person in question stands to gain more from the state law. Conversely, when state law imposes more responsibility on a citizen than federal law, the person could be subject to a higher penalty for violating the state law. Even though no attempt has ever been in systematically studying the implication various legislations in Ethiopia, land law, environmental conservation laws, human rights laws, employment laws and banking regulations are examples of situations where some state laws might be more restrictive than similar federal laws. It is imperative to point out here that the sources of there are a number of bodies both in the federal or state levels that are sources of the law. The legal frameworks issued by a number of bodies have different weight and hierarchy. It is not within the remit of this article to consider the either the source or the hierarchy of the law. However, the writer would like to inform the readers that there is a research being currently underway and it will be published as soon as it is finalised.
Conflict of law (Conflicting Laws)
Federal Laws — and state laws — can be very complicated, and therefore create conflicts. But the rule is simply and straight forwards, when conflict happens, Federal Law “wins”. A conflict exists if a party cannot comply with both state law and federal law (for example, if state law forbids something that federal law requires). The Ethiopian Federal Constitution includes what is called the “Supremacy Clause,” which says that the Federal Constitution, federal laws and Ethiopian treaties negotiated with our countries are superior to state laws. Therefore, when a state and federal law explicitly conflict, the state law cannot be enforced, i.e., the state law becomes null and void or inapplicable. This happens when a state law expressly permits an action that the federal law expressly forbids. However, the opposite is not true. States have a right to impose more responsibility on their residents, and a state law can prohibit marijuana even if federal law permits it. In this regard, it means the legal positions have always been clear in Ethiopian. Nevertheless, the biggest issue in the country of has been the problem of implementation. The laws will not serve its purpose if they are not backed up by institutions and entities monitoring the observance by the regional states.
State Laws and Ethiopian Federal Constitution
Because of the Supremacy Clause, article 8 of the Constitution of the Federal Democratic Republic of Ethiopia, state laws cannot supersede the constitutional rights afforded to all Ethiopian citizens under federal law. No state law can abolish or reduce the rights afforded by the Federal Constitution. For example, Article 14-44 of the Constitution expressly forbids forcible slavery, and declares it a right of every Ethiopian citizen to be free of forced servitude. State law therefore cannot allow slavery at the state level, as this would violate residents’ federal constitutional rights.
So the Ethiopian federal government has overlooked to strictly adhere to its own constitution and paved the way for the harmonisation of different legal frameworks created in the post 1991 civil war in the country. If Ethiopia is sincerely aiming to achieve a lower-middle-income level with the next two decades, it is quite more imperative that it strictly make sure that there is a harmony among various legal frameworks issued by various entities. If, however, this is failed, I am afraid that the country will be in more chaotic situation where individuals rights and freedoms are violated by the system it created let alone achieve and sustain its economic miracles it purports has attained in the last ten successive years. New era seems to dawning for Ethiopian after the death of former late Prime Minister Meles zenawi in 2012 and election new Prime Minister Haile Marriam desalagn. Ethiopia is an ancient country that simply adheres to its cultural tradition although it contradicts all scientific improvement around the world. The regime clings on the telecommunication and banking industry and prevents from the participation of foreign investors that would have spurred breath of modernisation into the system. As a result, currently Ethiopia has the least developed telecommunication system even from the lawless neighbouring Somalia. Ethiopia will remain backward as long as the EPRDF/TPLF did not relinquish power for the people of Ethiopia.