Ethiopian politicians should agree a transition period, and use it wisely

In the past, elections were touted as the only route to democratization. Recent research, however, has revealed that since 1988 polls have lost some of their democratizing power. In the previous article I explained how, in deeply divided countries such as Ethiopia, elections are not an appropriate mechanism for resolving fundamental differences. It concluded that Ethiopia’s electoral timetable should be changed, because the conditions do not exist for conducting peaceful and credible competitive elections in 2020.

Postponing elections, however, opens a new set of complications and questions. First, can it be done legally? Second, will it create more problems than it solves?

Article 54 of the constitution, states: “Members of the House of Peoples’ Representatives shall be elected by the People for a term of five years”. Beyond that, the constitution is silent about who schedules the election, and there is no provision for postponement. Proclamation No. 111/1995 gives the National Electoral Board of Ethiopia statutory authority to set the date, but nowhere is any individual or branch of government given the authority to call a ‘time out’.

So, if the constitution requires elections every five years, and there is no constitutional or statutory provision for their postponement, what legal options exist to delay a vote?

What is envisaged is postponement for a brief period

At first blush, Article 93, which deals with “Declaration of State of Emergency,” appears to provide a constitutional path to postponement.  However, a ‘state of emergency’ as envisioned in Article 93 could be declared only in case of an external invasion, a breakdown of law and order that endangers constitutional rule, a natural disaster, or an epidemic. Absent one of these four conditions, it does not seem to be an appropriate action.

It might be argued that Ethiopia’s parliament has an inherent emergency power to postpone an election, but that would be overextending the logic of inherent power. The inherent power only extends to declaring a state of emergency or state of exception. Of course if the emergency coincides with the time of the election, it will be postponed. But the state of emergency will not be declared just to postpone an election.

There is a broad consensus that only in extraordinary situations do states have the right to declare a state of emergency. Kim Lane Scheppele writes, “…When the state is facing a challenge so severe that it must violate is own principles to save itself.” When we come to elections, we are not talking about defending against acts of others or natural disaster, etc., for survival. Instead we are talking about whether to implement a constitutionally required act that could lead to disaster.

According to Bruce Ackerman, traditionally one of the guiding principles behind the state of emergency is if there is an existential rationale. He said: “It is invoked by the threat of an enemy invasion or powerful domestic conspiracy aiming to replace the existing regime. The state of emergency enable the government to take extraordinary measure in its life-and-death struggle for survival.”  In short, the state of emergency is a defense mechanism against a threat that exists, while postponement of elections is due to fear of what may happen.

Besides, I am unaware of any country where elections could be postponed for an extended period without express authority. In some countries, like Nigeria, the election commission has authority to postpone elections if it foresees difficulties with materials or security that would affect the conduct of credible elections. What is imagined here, however, is postponement for a brief period, so it is not pertinent to the Ethiopian case.

Constitutional paradox

One possible path around the constitutional hurdle lies in amending the founding document. However, this idea is unworkable for several reasons. First, practicality: amending the constitution is a lengthy and elaborate process. Even if it were politically feasible, there is simply not enough time. Second, such an amendment arguably violates constitutional principle. Should a constitution take away one of the principal reasons why a constitution exists? It does not seem wise to legislatively interfere with a constitutional protection of the right to vote just for the sake of solving a one-time political conundrum. It is not hard to imagine how such a constitutional provision could be later abused by an autocrat. Therefore, we should oppose any constitutional provision that gave authority to any governmental entity to postpone elections for an extended period.

So if the constitution provides no avenue for postponing an election, but going ahead with parliamentary polls in 2020 could potentially bring great harm, then which route should we take? Should we proceed with elections knowing they might exacerbate existing tensions that, in the worst-case scenario, could result in state collapse?  Or, should political leaders of all stripes try to form a multi-party consensus to act together in an extra-constitutional effort to save the country?

This presents an existential dilemma. Following the constitution could lead the country to ruin. But what seems like the best way to avoid a total collapse of the state is to act in ways not envisioned by the constitution.

For me, if the options present themselves in such a stark manner, however painful, the choice is clear—I would opt for postponing the vote, even if it means contravening constitutional principle. After all, to borrow the late U.S. Supreme Court Justice Robert H. Jackson’s phrase, “the constitution is not a suicide pact”. If upholding a country’s constitution clearly has the potential to ignite civil war, and puts into jeopardy the country’s survival, then there is no reason why it should not be set aside if the move has significant multi-party support. In rationalizing why he suspended habeas corpus, Abraham Lincoln said it best when he wrote, “[A]re all the laws, but one, to go unexecuted, and the government go to pieces, lest that one be violated?” I do not reach this conclusion lightly, and it should be emphasized that this is not something that should be done except in extraordinarily rare circumstances.

Opposition parties must express overwhelming support

There is one absolute caveat here: before taking this extraconstitutional step, opposition parties must express overwhelming support. It would be best if opposition leaders, after consultation, jointly bring a proposal to the government. Ideally, a referendum could be held to indicate public approval. Under no circumstances should the government take any such action in the absence of full-throated endorsement from a significant cross-section of the body politic.

Thus, the ball is squarely in the court of Ethiopia’s disparate and often-squabbling array of opposition forces. It is uncertain, to say the least, whether they could find a path to accord, but because postponing the elections is the right thing to do, and one of the few options the country has to preserve whatever progress has been made in the transition to democracy, it should be explored with utmost vigor. Whether the political elites of the country can rise to the occasion by putting the ideal of democracy and country above their own interests and egos, may be the most important question facing the country.

The early indications are not promising. Proving once again that politics makes strange bedfellows, forces as scattered as the TPLF and ‘Ethiopianists’ such as Eskinder Nega and Dawit Woldegiorgis are already suggesting that any delay past the five-year mandate would invalidate the legitimacy of the government; the implication being that removing the incumbent administration by force would be justifiable.

Frankly, such talk of illegitimacy is just fear-mongering, as any postponement initiative would be anchored on strong support from political entities across the spectrum. Besides, even if postponement has its own danger, it is less dangerous than proceeding with the election.

Playing the field

The chief argument against postponement is that it would be seen as a shrewd way of extending the rule of the incumbent EPRDF, which has championed the concept of Revolutionary Democracy that envisions a single-party state. It is hard to imagine that opposition parties who have fought against one-party rule for most of the past 30 years would allow that party to simply extend its mandate by consent. But because the proposal would, of necessity, be initiated by the opposition, that would imply that the devil they know, one-party rule, would be preferable to the devil they don’t know, which would be a possible descent into chaos. Additionally, the EPRDF itself may well need more time to undergo its own transformation into a single national party, and the rest of the political scene may need time to adapt to the consequences of that process.

Overall, the transition concept is similar to the one employed in Algeria, where the people demanded postponement pending the complete overhaul of “le système”. There were similar dynamics in Sudan after President Omar al-Bashir finally fell.

There is also a concern that postponement could give an electoral advantage to the incumbent at the next vote, possibly laying the ground for further authoritarian rule. But at this difficult time in Ethiopia’s political development, it is not clear whether there is any advantage in incumbency, since leading a country from conflict to stable democracy is one of the most demanding and difficult tasks in politics. Not many who lead such transitions survive politically. Still, it is an issue and thought should be given to measures that might ameliorate the ruling party’s power during the transition period to make the idea more palatable to opposition groups, who would otherwise essentially be powerless for its duration.

A caretaker administration would be a non-starter

One such measure could be to reduce the ruling party’s media influence, placing state-owned and party-affiliate outlets under the stewardship of a truly autonomous public corporation. Another idea would be to agree that, at the end of the transition period, a caretaker administration would be formed to hold power during the run-up to elections. However, this would probably be a non-starter, as it is not at all clear that the incumbent would voluntarily relinquish power. And anyway, agreement on such an administration is unimaginable, given the vast chasm in ideologies and the personal animosities among the various political leaders, as well as the lack of a democratic culture and the weakness of democratic institutions.

I therefore propose that the 2020 election be postponed for not longer than one full parliamentary term. What is envisioned is not a radical departure from the status quo. The only difference would be suspension for a finite period of the single constitutional requirement for elections every five years. During that time, the current government would remain in office. All other provisions of the constitution would continue in full force.

For the initiative to succeed, a common understanding is necessary. All political actors must appreciate and accept that the country finds itself in extraordinary circumstances, and extraordinary measures are therefore needed to rescue it. Once we have internalized this, then the constitution should not be an obstacle to saving Ethiopia. After all, the constitution is a tool for governance, not a chain to strangle the nation with.

Transition tasks

Taking the extreme step of postponing the 2020 election assumes a good-faith effort by all sides to create conditions conducive to build a working multi-party democracy, starting with a credible plan for a nationwide vote.  By the time of the parliamentary poll, acceptable security conditions would have to be in place and institutional changes made to ensure the legitimacy of the exercise.

During this transition period, the electoral board should hold consultations with all major parties to devise an electoral framework that is acceptable to a significant segment of the body politic. This cooperative exercise among opposition organizations and the ruling party could be a significant confidence-building tool in finding a formula that could be endorsed by most, if not all, political entities.

There is ample evidence that the ‘winner-takes-all’ or ‘first-past-the-post’ electoral system is among the main causes contributing to outcomes in which a defeated candidate refuses to concede. Angola is a good example. The September 1992 elections in Angola led to the breakout of even more intensive civil war when the opposition UNITA and its leader Jonas Savimbi refused to accept defeat. Because the winner-takes-all system does not envisage power sharing, the UNITA forces felt threatened. Since their adversaries had won all the power, they saw no alternative but to keep fighting.

The ‘plurality’ electoral system that exists in Ethiopia today cannot adequately serve the constitutional needs of society with deep ethnic cleavages. As the Dutch political scientist Arend Lijphart says: “For divided societies, ensuring the election of a broadly representative legislature should be the crucial consideration, and PR (proportional representation) is undoubtedly the optimal way of doing so.” Thus, one crucial point for consideration during the transition is how to reform the electoral system and procedure to best serve the country’s needs and enhance political stability.

There should be a referendum on the constitution

The envisioned transitional period would be one of political realignment, in which like-minded organizations have the time to coalesce, while others beset by internal differences might break apart and create new alliances. It could also be a time of fence-mending, when erstwhile adversaries have a chance to engage each other in constructive dialog to create a new mechanism that would allow them to compete collegially in an agreed-upon electoral format.

It is no secret that Ethiopia’s political elites are sharply divided over the question of the legitimacy of the constitution. On one side are ardent supporters who believe the country would disintegrate without it; on the other are detractors who see the document as an obstacle to national harmony. Given this chasm, it is hard to see how elections could contribute to healing the country’s wounds. Thus, I propose that during this transition period there should be a referendum on the constitution.

That said, there is little doubt that such a referendum would itself be divisive, so mitigation measures are needed. It should be conditional on the understanding that if a majority supports the constitution, it would serve as the basis for any re-ordering of the political system. If voters reject it, a constitutional convention shall be convened immediately to draft a new one, which would also be subject to a referendum.

State party

In either case, it is essential that all parties understand that the transitional period be used, to the extent possible, to build mechanisms that put a check on governmental power. This would include measures that separate the party from the government, distinguish between the government of the day and the state, extricate the security forces from the ruling party apparatus, place the media outside EPRDF control, strengthen the independence of the judiciary and the electoral board, and create effective and trusted electoral dispute resolution mechanisms.

Such reforms aimed at constraining the power of newly elected majorities will go a long way toward persuading those who do not win to peacefully concede defeat and work within the legal framework. Similarly, steps should be taken to assure incumbent parties that there will be no retribution; that is, that their rights would be respected in the event their side is defeated at the polls.

There is no denying, however, that the current government is a successor of one which the people revolted against. Even though Prime Minister Abiy and Lemma are still relatively popular, (particularly following the award of the Nobel Peace Prize), their party does not have the same stature. Antipathy to EPRDF is strong among those who experienced its repression. Many of the strongest political parties struggled against it, some violently. There is continuing mutual enmity.

Unless there is some sort of truce between EPRDF and its adversaries, it will be difficult, for example, for supporters of OLF, who have previously rejected the government as illegitimate, to trust the ruling party as a negotiating partner. In such an environment, where formerly outlawed groups remember cruel actions, it is hard to imagine how a suitable atmosphere for elections could be created. This is an issue that can only be addressed through decisive acts at the highest levels of authority to ease fears among political leaders and parties that have been powerless for decades.

There is continuing mutual enmity

Under such conditions, staging elections would be problematic, as well as unwise. In addition, many alleged victims of cruelty by security forces during past elections fear that this will give those forces another chance to wreak havoc on minority populations. This issue of enmity must be addressed at the highest levels, to provide assurances to communities that have been victimized in the past that security forces will be kept in check, and will operate lawfully.

Only when these conditions are met might the people, and the vast array of opposition parties, trust that a new day has dawned in which the election they lost today, or their proposal that was rejected, does not mean their cause is lost. They must know that their party will again have a fighting chance in future polls, and that there are ways to contest, appeal, negotiate and amend; and that any group has the power to initiate a constitutional amendment, and other groups have the right to offer amendments and negotiate terms on a mutually respectful basis.

If a reasonable percentage of this proposal can be accomplished during a transition period, then it would be worth postponing the 2020 vote. It is better to wait until truly competitive elections can be held that could be a precursor to lasting peace, even if, along the way, an important constitutional provision is temporarily contravened.