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Sub-National Constitutions in Ethiopia

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Sub-National Constitutions in Ethiopia SUB-NATIONAL CONSTITUTONS IN ETHIOPA: TOWARDS ENTRENCHING CONSTITUTIONALISM AT STATE LEVEL* Tsegaye Regassa** Introduction Ethiopia’s federalism is often studied from the perspective of the “centre”.1 The result of this focus on the centre to start off our inquiries has rendered the state constitutions 2 invisible both in academic and non-academic circles.3 This article offers a fresh look at the Ethiopian federal experiment from the perspective of the states. In a sense, therefore, this study is an attempt at studying federalism “from below”.4 Thus this paper offers an overview of state constitutions in Ethiopia with a view to highlighting their significance in the public life of Ethiopians. It also provides an analysis of how we can deepen and entrench constitutionalism in the states of Ethiopia through the instrumentality of state constitutions. Given the fact that state constitutions *A shorter and earlier version of this article tion in 1995. Some of the recent studies entitled “Regulating Local State Behav- include, Assefa Fiseha, Federalism and ior: Towards Entrenching Constitutional- Accommodation of Diversity in Ethiopia: ism at the Sub-national Level in Ethio- A Comparative Study. Nijmegen: Wolf pia” had been presented at the 3rd Annual Publishers, 2005/6. Solomon Negus, Fis- Research Conference of the Ethiopian cal Federalism in the Ethiopian Ethnic- Civil Service College in June 2008 and based Federal System. Nijmegen: Wolf has benefitted from the colloquy thereof. Publishers, 2006), David Turton (ed), I am grateful to those who, in the confer- Ethnic Federalism: The Ethiopian Ex- ence, commented on the earlier draft. I perience in a Comparative Perspective. am also grateful to the LL.M Students of Addis Ababa/Oxford/Athens OH: AAU the Addis Ababa University (classes of Press/James Currey/Ohio University 2005and 2006) on whom I first tried Press, 2006. Fasil Nahum, Constitution some of the thoughts reflected in this for a Nation of Nations: The Ethiopian piece. I remain grateful to them for their Prospect. Asmara: Red Sea Press, 1997. interest and enthusiasm for the subject, Merera Gudina, Ethiopia: Competing and for making me, at times, look at the Ethnic Nationalism and the Quest for states with a different ‘lens’. Democracy. Addis Ababa: Shaker Pub- ** Tsegaye Regassa (LL.B, LL.M, PhD lishers (Netherlands), 2002. While these Candidate [Amsterdam]) teaches at the studies have examined the phenomenon Institute of Federalism and Legal Stud- of federalism in Ethiopia—and have en- ies, Ethiopian Civil Service College, and riched the scholarship in the field-- none in the Graduate Program of the Law Fac- of these studies make a sustained, direct ulty of Addis Ababa University, Addis inquiry into state constitutions. When Ababa. E-mail: [email protected]. they refer to state constitutions, it is often 1 A number of studies have been made tangential and indirect. since the adoption of the federal constitu- 34 MIZAN LAW REVIEW Vol. 3 No.1, March 2009 are the primary tools with which to guide and regulate state behaviour in states, this article contends that it is important that state constitutions foster the efforts to keep government accountable and transparent at the local level. This in turn ensures the deepening of not only constitutionalism but also of the principles of good governance.5 In this study, a quick survey of the constitutions of the nine states 6 of Ethiopia is made to provide an overview of what state constitutions look like, 2 Various terms are used to refer to state Case of Benishangul-Gumuz Regional constitutions. Depending on the nomen- State” (Unpublished LL.M Thesis: Fac- clature used to refer to the constituent ulty of Law, Addis Ababa University, units of the federation (i.e., States, Prov- 2008) are two of the very few theses inces, Cantons, Communes, Regions, written on the subject recently. “State etc), they might be ‘state constitutions’, Constitutions and Local Government” is or ‘provincial constitutions’, or ‘Statuti the only course offered in the study of (as in Italy), or ‘Estatutos de Autono- Constitutional Law in Ethiopia, and even mia’ (as in Spain). The term ‘sub- this only at a graduate level. In the world national constitutions’, a broader term to of constitutional practice, the first time include the constitutions of all forms of the issue of state constitutions is publicly sub-federal units, is used mainly to dis- discussed is in a recent annual consulta- tinguish them from the ‘national’ consti- tive meeting among states in June 21-22, tution which is applicable country-wide. 2008. One of the papers in this year’s As such, it is a handy tool to be used in consultative meeting, held in Harar, was the discussion on sub-federal constitu- entitled, “Constitutionalism in the States: tions. In this piece, because the constitu- The Role and Status of State Constitu- ent units in Ethiopia are known as tions in the Ethiopian Federal Experi- ‘states’ or ‘regional states’ or, more re- ment” (Amharic), presented by this au- cently, ‘national regional states’, ‘state thor. constitutions’ and ‘sub-national constitu- 4 See Tsegaye Regassa (2007), “Imagining tions’ are used interchangeably. Federalism from Below: Sub-national 3 Constitutions in the Ethiopian Federa- The only piece of writing on state consti- tion” (an unpublished manuscript, avail- tutions so far is this author’s “State Con- able with the author; forthcoming in stitutions in Federal Ethiopia: A Prelimi- nary Observation” [2004] (electronically 2009.) published at: http://www.camden- 5 While it is helpful to note the distinction rutgers.edu/pdf). There are a few Mas- between constitutionalism and constitu- ter’s Theses written by LL.M students at tionism (like Walter Murphy does in one Addis Ababa University. Getachew Ken- of his lectures entitled “Constitutional feshe’s “The Role of Council of Nation- Interpretation as Constitutional Creation” alities of the SNNPRS in the Accommo- given at UC, Irvine on November 1, 2000) dation of Diversity and Conflict Resolu- in order for us to distance ourselves from tion: Challenges and Pros- a mere legalistic adherence to texts of pects” (Unpublished LL.M Thesis: Fac- constitutions, in this study, owing to the ulty of Law, Addis Ababa University, focus of the study, the term constitutional- 2008) and Lemmesa Berber’s “Division ism is broadly used to refer to what is sig- of Powers in the State Constitutions- The nified by constitutionism, too. 3 (1) Mizan Law Rev. SUB-NATIONAL CONSTITUTIONS IN ETHIOPIA 35 their purposes, functions, features, and operations, the institutions they con- stitute and regulate, the rights they guarantee, the limits they impose on state and local governments, and the manner of their making, interpretation and amendment. Having made an analysis of the texts of the constitutions of the states and of the federal constitution and other relevant sources of state con- stitutional law, and aided further by the theoretical and comparative literature in the field, an attempt is made to assess the state of sub-national constitu- tionalism 7 in contemporary federal Ethiopia. An attempt is thus made to identify some of the challenges and problems that attend state constitutional law both at the level of design and of implementation. Finally recommenda- tions in favour of better entrenchment of sub-national constitutionalism are submitted. Some of the questions that this study wrestles with include the following: (1) what are the purposes, functions, features, and significance of state consti- tutions in a federal system such as Ethiopia’s? (2) What are the principles, structures, and distinctive features of the state constitutions of Ethiopia? (3) What does the making, interpretation, and amendment of state constitutions look like? (4) What protections do the constitutions afford to fundamental rights and freedoms in the states? (5) What roles do the state constitutions play in institutionalizing self-rule and sub-national constitutionalism? (6) What are the problems and challenges encountered in the process of en- trenching constitutionalism and deepening good governance at the sub- national level? 8 6 The nine states that constitute the Ethio- of the two city administrations. pian federation are: Afar, Amhara, Benis- 7 The term ‘sub-national constitutionalism’ hangul-Gumuz, Gambella, Harari, refers to constitutionalism at the state Oromia, Southern Nations, Nationalities, level. It is often used in preference to the and Peoples’ Regional State (SNNPRS), term ‘state constitutionalism’ because it Somali, and Tigray. All these states have refers to the levels of constitutional prac- their own state constitutions adopted in tice at levels below the federal one (which 1995 and revised in 2001 and since. The includes the state, the zone, Woreda, Ke- self-governing (autonomous) cities of Ad- bele, and the Municipality level) govern- dis Ababa and Dire Dawa have their own ments. While the term is broader in its charters in accordance with which they are scope than the ‘State Constitutionalism’, administered. Both cities are accountable in this study, as indicated in supra note 2, to the Federal Government, Addis Ababa we use the two terms interchangeably. because it is the federal capital and Dire 8 It is important to note that these questions Dawa because of the demographic hetero- are ones often used in the study of sub- geneity of its residents which is not ame- national constitutions, a field that can be nable to accountability to one regional viewed as internal comparative constitu- state. This study is focused on the consti- tional law or comparative constitutional tutions of the nine states, not the charters law from within. 36 MIZAN LAW REVIEW Vol. 3 No.1, March 2009 This article is presented in six sections. Following this introduction, sec- tion two gives an overview of state constitutions in federal polities. Section three describes state constitutions in Ethiopia. In section four, we analyze the extent to which state constitutions are utilized to regulate state behaviour at the sub-national (i.e., State and sub-state) levels in Ethiopia.
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