Daily Archives: May 14, 2020

The number of countries in which state structures have collapsed seems to be growing. But is it really? Are these so-called failed states a threat to global security? And is there an antidote? Five hypotheses, put to the test.

Not necessarily. Very few states have completely failed. In international law, a state has failed when its authority has largely disintegrated and it can no longer carry out essential duties. Recent examples include Syria and Yemen but even in these countries, both of which are embroiled in ongoing wars, the state is still able to perform basic functions in parts of its territory.

In any case, the blanket diagnosis of state failure has been out of fashion for more than a decade. In 2001, it still served as a justification for the US-led intervention in Afghanistan, which was supposed to result in a liberal and democratic Afghan state. Almost 20 years later, this endeavor has proven a complete disaster thanks to the immense hubris of the interveners and their inability to comprehend the diverse challenges arising from political order in contexts where scarcity and violence are more widespread than prosperity.

Instead of being labeling as failed, such places are now commonly considered fragile. And even the most fragile among them which are rarely entire states, but more often sub-state areas or regions with limited statehood have neither failed irretrievably nor are they waiting to be rescued by the West.

Fragility is considered to be the opposite of state stability on a continuum between a well-functioning and completely absent state. As World Bank expert Michael Woolcock once put it in reference to Tolstoy, every fragile state is fragile in its own way. While one state may lack authority, another may suffer from a lack of legitimacy and acceptance in the eyes of its population. Elsewhere, a governments capacity to supply basic public services may be limited. And the situation often varies considerably between different parts of the same country.

Global indices such as the Fragile State Index (FSI) categorize states according to a cross-section of several symptoms of fragility. Their rankings often produce unexpected neighbors in the global rankings. Take, for example, Turkey and Tanzania: while the two countries both received similar FSI scores between 2017 and 2020, that instability is rooted in very different causes and comes with varying consequences. While the main problem in Tanzania is low state capacity, the index attests Turkey limited legitimacy as a result of widespread repression in the country.

To account for such nuances, governments and international organizations have refined their analytical tools. The German government, for example, distinguishes between multiple fragility profiles based on a states levels of authority, legitimacy and capacity. The Organisation for Economic Co-operation and Development measures fragility in terms of a states economy, environment, politics, and security. Since 2011, the World Bank refers to fragile situations rather than fragile or failed states; and in 2020, it chose to sharpen its focus on contexts marked by violent conflict or high social and institutional fragility.

From the vantage point of development policy, this makes perfect sense. According to World Bank estimates, at least half of all people affected by extreme poverty will live in fragile situations by 2030, and those areas do not always neatly map onto national borders. The Global Fragility Act, which was recently passed by the US Congress, also refers to existing rankings for fragility and conflict risks, but stresses the need for more nuanced analyses of the causes of state failure and violence.

Detailed fragility assessments rightly point to the fact that elements of fragility exist almost anywhere. These range from a rule of criminal gangs or rebel groups in certain sub-state areas to widespread poverty and a lack of basic public services in countries where governments are not going anywhere any time soon. They can also take the form of a temporary loss of state control in crisis situations (think Hurricane Katrina in the United States or the ongoing COVID-19 pandemic). But this does not mean that the world as a whole has become more unstable.

Accurately evaluating the risk of state collapse and conflict and proposing remedies requires a combination of expert assessments, scenarios and predictive analyses on the basis of geo-located event data. Such analytical capacities are being developed in the European Union and some member states like Germany, but there is still plenty of room for improvement to prevent and mitigate crises.

Thats a misconception. It is true that populations are particularly vulnerable without the protection of a capable state authority. But often it is these very state authorities who pose the greatest threat to their citizens. Well-organized state apparatuses are especially effective in carrying out repression and serious human rights violations against political opponents and minorities, including genocides.

That is why the contemporary understanding of security not only includes the security of states, but the safety of people and the protection of their rights. Domestic conflicts come with the potential to escalate and even destabilize the international order. The war in Syria is a prime example for how security threats to populations on the ground can directly impact neighboring countries or entire regions in this case the Middle East and Europe. Such a holistic understanding of security also reflects the fact that wars are not the principal danger to peoples safety. Violent crime accounts for global casualty numbers that are several times higher than those caused by armed conflicts.

Public order and essential services are often lacking in fragile states. But it is nave to sweepingly blame such problems on the absence of a strong state as the sole cause. In many contexts, non-governmental actors successfully provide basic public services like infrastructure and public security in coordination with the central government. Bangladesh became a development success story after the central government gave non-governmental organizations a free hand in running the countrys educational infrastructure. Since a lack of schooling for young girls is a proven risk factor for armed conflict, this move decreased the risk of conflict.

If, where and when public services, including security, are provided in a fair manner is not solely a matter of state capacity or stability. Hubs for illicit trade in arms and narcotics, human trafficking and cybercrime can also be found in states that are considered respected members of the international community. And it is often the governments of wealthy nations that cannot or do not want to be the providers of all public goods to all parts of the population. This becomes obvious during exceptional situations such as natural disasters or pandemics: police functions are outsourced to for-profit security companies, the private possession of weapons is poorly regulated, critical infrastructure like railway networks, power plants and hospitals remain underfunded, and access to those services is unequal.

In some cases. After the September 11 terrorist attacks, the United States and its allies were convinced that failed states are ideal hiding places for terrorists and thus constituted security threats. This narrative spread rapidly and proved very persistent. But the reality is that ideological, financial and logistical support for terrorists mostly comes from rich, functioning states.

A collapse of state structures is often followed by periods of lawlessness in which different groups compete for power often using armed violence. To spread and enforce their own model of public order, regional branches of the Islamic State have carried out terrorist attacks in countries like Iraq and Syria and throughout the Sahel. This illustrates that unstable states first and foremost pose a threat to the people living within their borders, who directly face the resulting violence, crime and disorder.

It is true that extremists also spread their ideology worldwide via YouTube and messenger services to recruit new followers for attacks in Europe and beyond. But only a small fraction of victims of violence are harmed in terrorist attacks. And the majority of terrorist attacks committed in Europe were carried out by European citizens with various ideological motivations.

Still, foreign and security policymakers view the collapse of state structures as one of the biggest global threats. Armed violence bears the risk of spilling over to neighboring countries or entire regions, and of escalating to the point of war between great powers. But whether or not this happens depends to a large extent on the behavior of other, mostly stable states. Major interstate conflicts arise when outside actors interfere in internal conflicts and the international community fails to reach a peace agreement such as in Syria and Yemen.

When large territories are no longer governed effectively, it becomes more difficult to tackle global security challenges like the spread of the novel coronavirus or to enforce international arms control agreements. The international system is based on states as the primary units of order. In diplomacy states are natural counterparts. In the absence of recognized governments, there are no legitimate partners for diplomatic relations. Negotiations and peace agreements become much harder when the relationship between parties at the negotiating table are a constant bone of contention.

However, limited capacity of the central state does not necessarily result in chaos. Somalia, where the central government has failed to effectively rule its national territory and population for decades, is considered one of the most fragile states in the world. But the autonomous region of Somaliland, a self-declared but not internationally recognized state, holds democratic elections and maintains control over its territory. While basic service provision is supported by international and local aid organizations, governance in Somaliland functions more effectively than in the rest of Somalia.

A closer look at differences within a country is essential for assessing security threats, but far too often this falls to the wayside. By focusing on recognized state structures, the international community at times undermines its own efforts toward effective problem solving.

*It shares a large part of the responsibility. *Especially when looking at the African continent, it is hard to deny that centuries of colonial rule and exploitation are causes for the instability that plagues many African states. Haphazardly drawn borders, which randomly divided established settlements, along with the division of people into ethnic groups based on pseudo-scientific criteria and their corresponding political instrumentalization still hamper peaceful coexistence to this day.

Colonial states in much of Africa were designed for exploitation by European rulers. Administrative structures served as tools of oppression, not legitimate forms of representation or even participation. Functioning and legitimate local institutions were destroyed. Today, differences in the stability of African states can be traced back to their respective experiences under different forms of colonial rule.

Even after these countries have been formally independent for decades, dependencies on the West and Global North persist. West African states, for example, still struggle to gain complete control over their monetary and fiscal policies, which are influenced by France. What is more, by choosing to support autocratic regimes in the quest for stability, Western governments continue to undermine the development of free and democratic societies.

The weapons used in wars and state-sponsored repression often come from Western countries like Germany or the United States. And it is the West that facilitates slavery and war economies and hampers economic development through the EUs trade and agricultural policies, the exploitation of natural resources like diamonds or rare earths by Western trade networks and corporations, and generally through Western mass consumerism.

Of course, many problems of contemporary weak states are homemade. While international financial institutions and donor countries often limit these states ability to independently manage their economies, the pressure for liberalization plays into the hands of kleptocratic elites who prevent the investment of state revenue into infrastructure projects and public goods for the population. Instead of fighting their money laundering schemes, Europe grants corrupt elites and their billions access to European financial centers much to the detriment of the local populations. While European politicians sharply criticize such corruption in public statements, they ultimately dismiss it as an unfixable defect of non-Western societies.

And not only former Western colonial powers take advantage of weaker states. Actors like China, Russia or the United Arab Emirates also benefit from the money laundering, lack of natural resources regulation and flourishing arms business that characterize many weak states and thus prevent effective global solutions.

While Europe continues to be perplexed by violence and state failure as drivers of migration, its coarse attempts at controlling migration and terrorism create new rifts within historically developed cross-border economies. Instead of contributing to prosperity and thus reducing migration, European governments restrict cross-border movements and inadvertently further the cycle of poverty and repression. So the West is far from acting in a conflict-sensitive and historically conscious manner and from promoting peace and development in unstable regions to its best ability.

*There is, but there is also a serious risk of doing more harm than good. *Afghanistan is representative for all the countries where Western intervenors catastrophically overestimated their influence, their understanding of the situation on the ground, and their own legitimacy. Those who act like a bull in a china shop should not be surprised by the mess.

But given the risks associated with escalating violence and a rising number of displaced people, doing nothing is hardly a viable option. The German government and many of its partners understandably want to see the wars in their neighborhood end and make sure that cornerstones of international law, such as those regulating weapons of mass destruction or prohibiting the killing of civilians, are respected.

Once a state has collapsed, the road back to functioning institutions is a long one. Still, examples like Germany after 1945, Korea, Vietnam, Bosnia-Herzegovina, Kosovo, Liberia, or Sierra Leone all show that (re)construction under varying conditions is possible. The group of states we see today has not always been around and will likely not remain in place forever. When governments founded the United Nations almost 75 years ago, they designed its Charter to prevent violent disputes on state sovereignty. But the post-World War II period is full of examples of states being destroyed and reconstructed.

In times of acute crisis, humanitarian support and diplomacy can help. The aftermath of natural disasters and conflicts require financial assistance from international funds. Economic cooperation facilitates reintegration into the global economy. In the fight against diseases such as Malaria, countries benefit from targeted external support. But if outside actors assistance permanently substitutes public services, they can weaken existing structures.

To support other countries in times of crisis, some governments try to counteract immediate state collapse through stabilization measures. The German government, for example, uses civilian, police and military means to achieve a rapid and clearly visible improvement in living conditions for civilians and thus increase public trust in local authorities. In Iraq and Mali, Germany supports the respective security sector with training and equipment to further sustainable development, create the conditions for a reconciliation of the conflict parties, and even lay the foundations for democracy. While these are noble goals, reaching them will require a long-term effort and a lack of detailed studies means that the jury is still out on whether this approach actually works.

Securing basic services for vulnerable populations can buy time and political capital to help resolve underlying differences, but nothing more. Stabilization alone cannot cure structural problems like corruption, an inequitable distribution of resources, or the exclusion of minorities much less end the external support for conflict parties by major powers that has prolonged and exacerbated conflicts like the one in Syria.

As a result, international organizations, the EU and European governments are increasingly focusing on conflict prevention. Beyond diplomatic mediation, their goal is to foster long-term societal resilience through democratic participation and flexible institutions. This is a difficult balancing act with a number of conflicting goals: stabilization, respect for locally developed structures, and promoting democracy and human rights as the basis for sustainable peace.

Any success of European conflict prevention efforts will be difficult if not impossible to prove definitively. Experience shows that when a conflict breaks out, oversimplified explanations spread even quicker than the violence itself. But when violence is avoided, nothing happens. Prevention measures usually go unseen and investments in conflict prevention do not result in tangible political wins. Instead, they call for close observation, tolerance for complexity and, above all, patience. Understanding what would have happened under different circumstances requires tracing complicated processes with the help of counterfactuals, scenarios and simulations a tedious exercise that is often complicated by a lack of a sound empirical basis.

Despite the arguably limited influence that external actors have, the possible return on investments in conflict prevention is high: prevention is significantly cheaper than the sum of humanitarian, stabilization and reconstruction efforts not to mention that it is a moral responsibility.

A German version of this commentary was originally published in the May/June 2020 edition of Internationale Politik.

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What's Left of the Failed States Debate?: Putting Five Hypotheses to the Test - World - ReliefWeb

Rather than focusing solely on a questionable constitutional interpretation process, complementary democratic pathways through the COVID-19 emergency and election delay should also be considered

On 11 May, the Council of Constitutional Inquiry (CCI) made a public announcement seeking written submissions from experts on a request for constitutional interpretation from the House of Peoples Representatives (HoPR), submitted on 5 May. The request indicates that the National Electoral Board of Ethiopia is unable to conduct elections on 29 August as planned, as a result of disruptions to its preparations due to the national and international responses to the COVID-19 pandemic.

The constitution fixes the term of the HoPR, and therefore government, to a maximum of five years (Article 54(1), and requires elections at least a month prior to the end of the term of the HoPR (Article 58(3)). Because the term of the current parliament will end on 5 October, the inability to hold elections before 5 September would be contrary to the constitution, unless the suspension of the relevant provisions is justified as necessary under the current emergency circumstances (Article 93(4)(b)).

Accordingly, the request for constitutional interpretation seeks answers to two questions:

Plausible solutions within the current constitutional framework have been suggested for these key constitutional and legal issues. But the outcomes of the interpretation exercise would not address underlying concerns regarding the emergency and elections. Instead, approaches such as a National Dialogue and a consultative government, which fall beyond the ambit of the constitutional framework, should also be considered.

Before the CCI/House of Federation (HoF) delve into determining the substantive solutions to the constitutional conundrum, they must first settle preliminary procedural issues.

Mandate to issue advisory opinion

It is important to state from the outset that the request for interpretation does not relate to whether elections can be postponed at all. The postponement is presented as a given. Beyond this, there is no specific government decision, law, or even proposal, and the request does not relate to the compatibility of a chosen course of action with the constitution. Therefore, the HoPR is seeking an opinion on what the constitution requires or allows in relation to the two issues.

In the absence of a chosen or proposed course of action, there will not be a review by the CCI, whether concrete or abstract. Accordingly, the request is for an advisory or consultative opinion. Advisory opinion is distinct from abstract review in that it involves the review of a decision or law without a need to show that the decision affects a specific persons rights (i.e. without a victim). In procedures for an advisory opinion, there may not be a decision at allas is the case in the request at hand.

As in all legal proceedings, the CCI must first determine whether it has the constitutional and legal mandate to provide an advisory opinion. This is critical because some commentators have argued that the constitution does not allow the issuance of advisory opinions, or even abstract review.

Under Article 62 of the constitution, the HoF has a plenary power to interpret the constitution. There is no reference to disputes or even review, which would assume the presence of a decision or law. In contrast, Article 83(1) refers to the power of the HoF to resolve constitutional disputes, in the Amharic version . Specifically, in relation to the CCI, the English version of Article 84(1) also speaks of constitutional disputes, but the Amharic version uses (issues), rather than .

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A cumulative reading of these provisions appears to suggest that the HoF has a broader mandate to interpret the constitution than the CCI, which could arguably be understood to include providing advisory or consultative opinions.

This distinctive mandate seems to have found expression in the relevant laws regulating the role of the two institutions. Article 4(2) of HoF Proclamation No 251 provides that the HoF shall not be obliged to provide consultancy service on constitutional interpretation. The a contrario reading of this provision could be interpreted to mean that the HoF has the discretion to offer an advisory opinion. Indeed, the HoF has on occasions provided advisory opinion (e.g., on the issue of whether a federal family code could be enacted as part of the need to create a single economic community), but has also declined to offer such service (e.g., on the meaning of the special interest of Oromia over Addis Ababa).

Admittedly, the current request is much more amorphous than the instances where the HoF gave an advisory opinion, as the HoPR is not seeking advice on whether a specific plan or proposal (e.g. a federal family code) would pass constitutional muster. The current request is unique in that it is completely open and exploratory, potentially opening the possibility for a range of constitutionally plausible answers, rather than a single answer. There is therefore no guarantee from precedent that the request would be accepted, despite the momentous occasion.

In contrast, the proclamation regulating the CCI, no 798/2013, has no provision authorising the CCI to issue an advisory opinion. Some commentators have indicated that Article 3(2)(c), which allows one-third of members of a federal or state legislature, or the federal or state executive to submit a request for constitutional interpretation on any unjusticiable [sic] matter provides the basis for the request for interpretation. Nevertheless, this provision cross references and gives effect to Article 3(1) which clearly refers to challenges to any law, customary practice or decision of government organ or decision of government official. As such, under this law, the CCI can only review a law, decision, or customary practice.

As indicated, in relation to the request for interpretation on the consequences of the postponement of elections, there is no law or decision. Accordingly, if at all this request could be considered, it may have to be directly submitted to the HoF, not the CCI.

It may be argued that Article 6 of Proclamation No. 251 enjoins the HoF to forward direct requests for constitutional interpretation to the CCI. As such, a procedural technicality should not be used to delay the settlement of the critical matter. This would be inaccurate. A discretion to accept a request for an advisory opinion is fundamental and is a filtering mechanism that allows the HoF to consider a range of factors, including non-legal factors.

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A decision to seek an advisory opinion is inherently political, so is a decision to accept it or not. As a principally legal entity, the CCI may be unsuitable to exercise this discretionary power. Leaving the initial decision to the HoF would also insulate the CCI from accusations of selectivity in the exercise of the discretion. Therefore, Article 6 of Proclamation No. 251 may not necessarily be understood as justifying the delegation of the discretionary decision to accept or reject a request for an advisory opinion.

If this line of argument is accepted, the CCI must either directly rely on the apparently broader Amharic version of Article 84(1) of the constitution empowering it to resolve constitutional issues; or it may have to decline the request and advise the HoPR to submit the request to the HoF instead. The HoPR and the government may then either choose a course of action, which could then be challenged as unconstitutional, or submitted to the CCI/HoF for abstract review; or redirect the request for advisory opinion to the HoF.

While the matter may ultimately return to the CCI, and this outcome would simply delay the resolution of the matter at a moment when time is of the essence, respect for legality and a need to insulate the CCI from undue politicization may justify it.

Need for constitutional interpretation

Suggesting that the constitution is clear and does not need interpretation does not exclude the CCI from entertaining the request, if only to confirm this stance. A finding that there is no need for constitutional interpretation is itself an exercise in interpretation. In any case, while the relevant constitutional provisions may appear clear in isolation, a constitutionally defensible outcome requires reconciling the logic, interaction, and implications of the various provisions. Once the CCI/HoF claim the mandate to issue an advisory opinion on the current request, the need for constitutional interpretation is evident.

Where the procedural hurdles end, the substantive engagement begins. Even if the CCI/HoF affirm that there is need for constitutional interpretation and that they have the general mandate to issue an advisory opinion, they still enjoy the discretion to decline the request in this case.

If the CCI/HoF rule that they have the mandate to issue the advisory opinion and accept to provide an opinion in the current matter, there are a range of different outcomes.

Possibility I: Elections cannot be postponed

First, although the possibility of postponement of elections is presented as a fait accompli, it is not a given that the CCI/HoF would rule that the current constitution allows such postponement. If they rule that postponement is not allowed under the constitution, there would be no option but to amend the constitution to determine the circumstances under which the term of parliament and/or government may be extended, by whom, through what procedures, and for how long on each occasion and/or in total.

Possibility II: Elections can be postponed

If the HoF/CCI rule that the proper interpretation of the relevant constitutional provisions allows the postponement of elections beyond the five-year term in exceptional emergency circumstances that disrupt the organization of elections, they have to determine the consequence of such postponement. One outcome is absolutely necessary, and that is that the government has to continue; the question is only on the form it could take.

1. Parliament dissolves and government continues as caretaker

One possible consequence of the postponement of elections is for the parliament to be dissolved, while the government continues in a caretaker role. This would be analogous to the outcome of dissolution of parliament prior to the end of its term under Article 60.

This solution could be constitutionally plausible, but only if there is certainty that there would not be a need to renew the emergency, as such renewal or issuance of a new emergency would require approval of the HoPR. Considering the inability of excluding the possible extension of the emergency, as health professionals have warned of a possible surge in cases of COVID-19 even after countries have supposedly reached the peak, the need for renewal or issuance of new emergency cannot be precluded. As such, parliament must also continue.

A caretaker function for the government amid and in the aftermath of an emergency may also be inappropriate. The logic of a caretaker government, which seeks to cabin the role of government, is incompatible with the logic of an emergency, which requires a proactive government not only with a full mandate, but also exceptional powers. In addition to this logic, the unique circumstances that the country finds itself in amid geopolitical contestations over the Grand Ethiopian Renaissance Dam and in the politics of the Horn of Africa may militate against a caretaker government.

This incompatibility of the two logics is probably why in parliamentary democracies whose constitutions specifically regulate the impact of emergencies on terms of parliament and government, such as India (Article 83(2)), Mauritius (Article 57(4))and Poland (Article 228(7)), the institutions continue with full powers.

2. Parliament dissolves, government continues with full powers

This possibility would solve the problem of having a weak government at a time of need for a proactive and strong response. Nevertheless, it would not solve the problem that may arise in case the state of emergency needs to be renewed or a new one to be issued before the elections.

In addition, it is unusual for a government to exercise full, even exceptional, powers without a corresponding accountability mechanism that parliament is designed to provide. In the absence of parliament, the public deliberation that should inform decisions and policies would be undercut.

3. Both parliament and government continue with full powers

This third possibility would allow the parliament and the government to continue with full powers, including powers to suspend constitutional guarantees in an emergency. This option would address the challenges in the above two possibilities.

In addition, the continuity of parliament would at least provide a semblance of political accountability of the government.

This is the option that has in practice been pursued in relation to Addis Ababa City Administration and local elections, which have been repeatedly and controversially postponed. In all these cases, the existing legislative and executive organs simply continued. While the terms and status of these entities are not specifically defined in the constitution, as is the case with the federal legislative organs, and even if the postponements occurred in an authoritarian context, the experiences may be seen as establishing a precedent.

Theoretically, these three possibilities could be constitutionally defensible to varying degrees; admittedly the third option more than others. The presence of different plausible possibilities, rather than the clarity of the constitutional provisions in prohibiting extension of governments term, may tempt the CCI/HoF to decline the request for an advisory opinion. This would force the government and HoPR to choose one of these options, potentially opening possibilities for negotiation between government and opposition on the way forward, while remaining within the ambit of the constitutional framework. In case anyone challenges the chosen measure, the HoF and CCI would be called upon to exercise a more natural adjudicative function.

The second substantive issue in the request for constitutional interpretation relates to the time within which elections must be conducted after the circumstances that have necessitated the state of emergency end. It is important to clarify from the outset that this is not an issue about how long the emergency may last. The duration of the emergency may only be determined by the Council of Ministers, with the approval of the HoPR.

Considering the lack of information, capacity and resources of the CCI and HoF, it is practically unimaginable that they would readily provide a specific answer on the length of time between the end of the emergency and elections. Instead, they can be expected to determine the entity which can determine the length of time and may offer some guidance on how the decision should be taken.

Who decides?

In terms of the entity, under Article 93(4)(b and c) of the constitution, the power to determine the restrictions on constitutional guarantees during an emergency is conferred on the Council of Ministers. Indeed, the current state of emergency approved by the HoPR opts for a flexible approach and largely leaves the necessary restrictions and measures to the Council of Ministers.

Nevertheless, considering the fundamental nature of the right to vote as the epitome of the sovereignty of the people, and that the HoPR is the highest authority at the national level, the CCI/HoF may rule that the decision on the postponement of the elections as well as the exact length of the preparatory period for elections should be made by the HoPR itself, rather than the Council of Ministers.

Based on what?

The right to vote and periodic renewal of the mandate of political institutions lies at the heart of a democratic dispensation. The period of postponement of elections must therefore be only to the extent absolutely necessary to allow proper preparations for elections to ensure competitive, free, fair and informed choicesfor the electoral board and the public, as well as political parties, particularly opposition entities.

The CCI/HoF could therefore be expected to find that the determination of the period between the end of emergency and election date should reasonably consider the needs of the various stakeholders. In recognition of ensuring the legitimacy of the elections, the CCI/HoF could specifically require that the decision should be based on the proposal of NEBE, after consultation with the ruling as well as opposition parties, with a duty to provide public explanation for any changes to the electoral boards proposal.

Fundamentally, the contestation within the constitutional framework revolves around two issues, and the controversy over interpretation may therefore simply be beating around the bush. The first relates to opposition concern that the decision to end or renew the state of emergency could be based on calculations to advance the interests of the ruling party, including potentially a much longer period than may be justified. This opposition concern is not unwarranted, considering the absolute dominance of the ruling party.

Nevertheless, this elephant in the room is not among the issues that will be resolved in the constitutional interpretation exercise. While there is a possibility of challenging decisions in relation to the emergency in the CCI/HoF, they are likely to defer to the assessments of the government in this regard, considering their lack of sufficient information, resources, and institutional capacity.

A public government assurance that decisions on ending, renewing, or reissuing a state of emergency would only be taken after genuine prior consultation with opposition groups, or even agreement from parts of the opposition, would go a long way in appeasing concerns in this regard.

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The second underlying issue relates to the period of preparations for elections from the end of the circumstances that necessitated the emergency. There is concern among some opposition groups that the government may unduly prolong this period, to allow it time to (ab)use state resources to weaken the opposition; or unduly shorten it to catch the opposition off-guard and unprepared (note that even some of the prominent opposition parties are yet to fully re-register under the new electoral regime). A short period of time could mean that opposition parties have to spend most of their time attempting to finalize their legal establishment, rather than strengthening their structures, promoting their platforms, and building their constituencies.

As noted above, this second issue has been presented for constitutional interpretation. Nevertheless, the CCI/HoF are unlikely to offer a specific period. A CCI/HoF requirement and/or public government assurance that a decision on the period of electoral preparation would be based on the proposals of NEBE and prior genuine consultation with the opposition groups could dampen the level of mistrust.

Government concessions on these two fronts could secure broad opposition support for the continuity of parliament and government with full powers during the interim, an idea that already has support from key opposition groups.

As the saying goes, tough cases make great judges. The CCI and HoF have the chance to reset their records. If the procedural innovations, including in procuring expert submissions and hearings, are complemented with a robust decision, the moment of crisis may signal a hopeful future for constitutional democracy.

It is important to note that the terms of regional parliaments (and their governments) are not determined by the constitution. As such, the constitutional interpretation exercise would not directly and conclusively determine their fate. Nevertheless, the solutions in relation to the federal parliament and government are very likely to be replicated for the regions, as part of the measures under a state of emergency.

The above discussion relates to the possibilities within the current constitutional framework. Nevertheless, while not clearly stated, alternative or complementary proposals that fall outside the ambit of the constitutional framework have also been presented. The postponement of the elections has been seized by some political parties and commentators as a renewed opportunity to propose what they have long argued for.

While it is important to clarify that these proposals are outside the constitutional framework, it does not follow that they are undesirable or should be rejected. If there is sufficient consensus, it is possible to craft a new political and social contract, but that would require a constitutional adjustment.

National Dialogue

Key among these calls relate to a National Dialogue, or a transitional government. Considering the fragmented and polarised political discourse, and the failure to build a fundamental political and social contract in the almost three-decade rule of the former ruling coalition, a National Dialogue may indeed be necessary. While the FDRE Constitution still provides a veneer of a political contract, it never really achieved the reverence and broad support as a legitimate point of reference. The challenge in Ethiopia is not that an old political settlement has died and a new one cannot be born, it is rather the fact that no settlement was ever fully born.

While necessary, a National Dialogue should perhaps not occur in the context of a postponed election. It is arguably better to ensure that a National Dialogue does not occur alongside or close to an election period. Otherwise, short-term electoral calculations are likely to undermine and interfere in the inherently long-term considerations that should permeate such a process.

In any case, a National Dialogue would require a much longer timeframe than any constitutionally acceptable period of postponement. Negotiations on who should be part of such process, what should be on the agenda, how decisions would be taken, and how they would be implemented are likely to require a much longer period, even before substantive deliberations formally commence. As such, imminent engagement in a National Dialogue would perhaps require a constitutional amendment postponing the elections indefinitely. This conduct of a dialogue outside the shadows and short-term calculations of election periods would allow the deliberations to occur behind a veil of ignorance (as no party could know their level of support with certainty in advance of the elections) that is a precondition for a minimal type of public-spirited, reasoned, considerate and empathetic socio-political compact in the form of a new or revised constitutional framework.

In the absence of a sufficient timeframe, such a dialogue is much better left for after the elections, as the ruling party has insisted. As a compromise, the various political groups could start a process to agree on the basic principles that should guide the National Dialogue once elections are finalised. This would be similar to the creative two-stage approach adopted in South Africa after the formal end of apartheid where the African National Congress and other opposition groups and the apartheid government agreed an interim constitution with 34 broad but enforceable principles that formed the basis for a new constitution, which was ultimately drafted by an elected constituent assembly.

Considering the limited time available before elections and the election fever, incorporating such principles in the FDRE Constitution may not be achievable, but this is no excuse for failure to start the process and push as far as practically possible an agreement that would at least enjoy a moral force. Such agreement could involve a commitment from all parties to start the dialogue process as soon as possible, for the winners of the election to provide enough funding and political support, and on who should convene it.

Transitional government

Some opposition groups and commentators have also called for a transitional government. The call is premised on a claim that the current government, as well as the governments before it, were illegitimate and sustained their power through a combination of violence, oppression, and co-option.

Nevertheless, however justifiable the grievance may be, a transitional government would not be acceptable within the current constitutional framework and pursuing it would require a constitutional amendment. Practically, just like a National Dialogue, forming a transitional government would require a much longer timeframe than the postponement of elections that the emergency would necessitate.

In any case, the current government has rejected the possibility of a transitional government. It is also arguably inappropriate in the current context where a unified, proactive government is needed to address the challenges of responding to an emergency and shifting geopolitical and international political sphere.

This does not mean that less formal but more inclusive governance structures cannot be organised. As I have proposed in another piece, the government could agree to a consultative government where it would formally provide opposition groups a chance to present and critique proposed policies and decisions prior to their formal endorsement. This formal opportunity for scrutiny is normally exercised by the parliamentary opposition. But because of Ethiopias past pseudo-elections and the authoritarian predispositions of the former ruling coalition that Prosperity Party has inherited, there is practically no opposition in the HoPR. The proposed consultative framework would make up for this original sin which provides the moral case for allowing opposition groups a formal opportunity to contribute to and influence policy making.

Prime Minister Abiy Ahmed in a recent video message and during consultations indicated that this wont be practical considering the number of political groups. Nevertheless, this could be addressed through using, for example, the Joint Council of Political Parties as the channel of interaction. Opposition political groups would therefore be required to debate the issues amongst themselves and propose a common position to the government with a fixed period of time. In addition to enhancing the legitimacy of public decisions, the exercise could generate a sense of common purpose and cooperation among the political class. This is also in line with the assurances of opposition consultations described above in relation to the renewal of the emergency and determination of the preparatory electoral period.

If the period of postponement is short, the government is likely to be reluctant to agree to this arrangement. Nevertheless, if this period becomes extensive, the government going it alone may become politically untenable.

Ethiopia stands at a critical juncture. The controversy over the postponement of the elections and its consequences has triggered a lively, multi-dimensional conversation over the understanding of the constitutional ordinances as well as the direction the country should take.

This piece has sought to contribute to this debate, first by breaking the constitutional issues down into their parts and identifying possible pathways; by discussing the underlying causes of the constitutional controversy, which require political assurances regardless of the outcomes of the interpretation exercise; and by distilling proposed ideas that fall outside the constitutional framework, and must be considered in that light.

While the debates have predictably generated some heated, and at times inflammatory rhetoric, there has arguably never been a moment of collective reflection on the Ethiopian constitution. This is an experience we should be proud of as a nation and must seek to consistently emulate if we are to bury the ghost of constitutions without constitutionalism.

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This is the authors viewpoint. However, Ethiopia Insight will correct clear factual errors.

Editor: William Davison

Main photo: Prime Minister Abiy Ahmed with opposition leaders Beyene Petros, shaking hands, and Merera Gudina.

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Published under Creative Commons Attribution-NonCommercial 4.0 Internationallicence. Cite Ethiopia Insight and link to this page if republished.

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Beating around the bush on the constitutional conundrum - Ethiopia Insight

DHIRENDRA NEWAR

It is once again proved that a hardship anywhere the world is an opportunity to exploit the labourers and poorer sections of the world everywhere. Whatever be the form of the government, whatever be the status of the Constitutional values of a country is, the labourers and the poor people of the world had been and are still been oppressed and subjected to inequalities. India is no exception to this, the plight of the migrant labourers and the poorer sections in the country, especially in the last couple of months is the visible example of such a scenario. Unfortunately, instead of redressing their plights, another major blow was thrown to them in the name of labour reforms being taken by various state governments to stimulate the economy.

In the last couple of days several state governments, including the state of Gujarat, Rajasthan, Punjab, Madhya Pradesh as well as the state of Assam have decided to make an amendment in the existing labour laws. The decision includes several stringent provisions like increasing the working hours from 8 hours to 12 hours a day, tightening the norms to get registered for enjoying the benefits of industrial laws to its employees, extending the number of labour requirement in an organisation to be brought under the jurisdiction of the labour inspector etc. Sadly, though working hours has been increased by an extra four hours, there is no increase in the wages for overtime works. All these seem to benefit the employers and industrialists who can have the liberty to exploit their employees and these workers and labourers are left with no rights but to get exploited.

It is understandable that the world is going through a tough time due to the outbreak of the pandemic. No country in the world is safe and has to face the blot of the onslaught of this disease. Nevertheless, whenever we read the ethos and values of our Constitution, we understand that our country is a democratic one and this has been evident from the various fundamental rights and directive principles of state policies that opt for several welfare measures to all sections of the population, be the rich or the poor. Under such a scenario, a pandemic like situation causes greater harm to the poorer and the lower sections of the population. Moreover, a change in the labour laws in the name of reform is unprecedented and uncalled for.

Our Constitution under Article 39 (e) provides that the health and strength of workers, men and women, and the children are not abused and that citizens are not forced by economic necessity to enter a vocation unsuited to their age or strength. Moreover, Article 42 of the Indian Constitution provides a direction to the state for securing just and humane conditions of works. Given these constitutional requirements, the present decision of the state governments to amend the labour and industrial laws in a bid to exploit the labourers and employees is an unfortunate one. In the pretext of economic hardships, no welfare and democratic country in the world exploits its workforce.

Prime Minister Narendra Modi in his address to the nation on 12th May had proposed for Atma-Nirbhar Bharat or self-reliant India. This was appended with an announcement of a package of 20 lakh crores, around 10% of Indias GDP for the revival of the Indian economy. This sounds a good move given the fact that the prime minister himself advocated for the welfare of the marginal as well as the migrant labours in his address. But the fact of the matter is that the exploitation of labours in one hand and the welfare packages for them in the other hand cant go together. This carrot and stick policy is not in tune of our Constitutional ethos.

Article 23 of the Constitution of India advocates prohibition of any form of forced labour. Though the term forced is not defined in the Constitution itself, it was interpreted by the Supreme Court for a wider use in a landmark case of Peoples Union for Democratic Rights Vs. Union of India (AIR 1982). In that case, Justice Bhagwati said, the word forced must, therefore, be construed to include not only physical or legal force but also force arising from the compulsion of economic circumstances which leaves no choice of alternatives to a person in want and compels him to provide labour or service. Given the fact that the changes in the labour laws call for an extended labour period that might cause a detrimental impact on the health and psychology of the labour class, it does amount to forced labour, and it is unconstitutional.

It is not unknown to the world that the industrial revolution in Europe had garnered several economic and industrial benefits. However that was followed by a consequence of widespread hardship to the labour class, their health and strength being compromised and the emergence of two-fold classes, the haves and the have nots. Today, if India opts for this imperial policy of labour oppression and exploitations, the outcome will not be a desired one. No democratic country in the 21st century can think of stepping to the ladders of economic surpluses on the hardships of its labours and workforces. Given the backdrop of the ongoing critical situations due to the outbreak of a pandemic, people might have no option other than to bow down to the government decisions and get exploited. But it is not a democratic and welfare decision on the part of India to allow this mischief being happened. A call for status quo in these developments and protect the labour class and employees from these hardships and exploitations is the least that the authorities in power can do.

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LABOUR REFORMS NOT IN SYNC WITH CONSTITUTION Northeast Today - NorthEast Today