When Constitution Lacks Legitimacy in the Making: The Case of Ethiopia

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Addis Ababa University


As O. Okoth-Ogendo, a constitutional author, pointed out in his bold terms, a constitution is: “A power map’’ upon which the framers may delineate a whole set of concerns which may range all the way from an application of the Hobbesian concept of ‘the covenant’, to an authoritative affirmation of the basis of social, moral, political or cultural existence including the ideals towards which the policy is expected to strive.” Hence constitutional-making, is a process which “involves, inter alia, making choices as to which one of those concerns should appear on that map. Thus, how this choices made, would necessarily affect some positively and others negatively -- depending on how they involved on the making of the choice. Unlike the traditional constitutional making which used to consider the constitution as an act of “completion,” modern constitutional making focus on participatory and conversational “new constitutionalism.” Today there is such a virtual consensus that a constitution should be made democratically. The understanding now prevails that constitutional process is democratic; as long as it is participatory and all-inclusive in each stage preceding the final document. Constitution-making as it involves “essentially the distribution of power,” the way constitutions made, as well as its substance, is of crucial importance in the political and governance transitions of every polity. Particularly for polities in short of national consensus, the participation of all the political, ethnic and socio-economic groups in this power distribution agenda fosters and strengthens in all of them the awareness that they are part of the same polity. It endorses and sustains their feeling of “sense of commonality” i.e. “the sociological claim of ‘We’ that defines a people.” This legitimacy ---- the sense of “We” minimizes the threat to the political stability. Accordingly, if it is properly organized, given adequate attention and resources, constitution-making can therefore transform societies from the worst to the better, otherwise to a continued unrest. These are among the lessons that are drown from an ongoing study that has been conducted over the past several years by the United States Institute of Peace on constitution making, peace building, and national reconciliation. Through an examination of 17 case studies of constitution-making processes around the world, which have occurred over the course of the last 25 years, focusing primarily on post-conflict transitions, the study attempts to assess the constitution-making process for its potential for conflict resolution and prevention as well as for the maintenance of stable peace. To date, this review by a wide range of experts strongly suggests a basic message perhaps more so than at any previous time in history, the processes by which constitutions are made matters. The question, however, is what if nations have failed to ensure democratic constitution in time of the making. What should be the position the political actors need to hold in curing this defect of the constitution? Coming to the experience in Ethiopia, those figurative political actors to whom I interviewed believe our Constitution has come with no due and proper consultation with the whole stake holders. As a result, they labeled the constitution as EPRDF’s party program, which they believe it had dominated the whole constitutional-making process. In consequence of this, they don’t show a commitment to the constitution and the political institutions established within the constitutional framework. Furthermore, while some have stated “constitutional change” as one aspiration in their political struggle, others listed dozen of provisions for constitutional amendment including those which defined the present Constitution. Rebel fronts and those groups branded as illegal actors are also among the prominent groups which aspire forconstitutional change. This is even true of among oppositions that are now acting on home politics. While constitution is supposed to be an everlasting document, at least to a considerable time, the Ethiopian constitution has such a clear of danger of turnover. As long as the EPRDF, the only party which believe the constitution is democratic, will not rule the country forever; it is inevitable the constitution will be changed with a change of the existing government. Particularly in countries like Ethiopia where political affiliation is directly related with ethnic lines, it is hardly a constitution to live generation after generation. Such kind of stance, the writer argue, would rather make the democratic process to remain in catch.



When Constitution Lacks Legitimacy, Ethiopia