Tuesday, October 25, 2016

Some Salient Points on the Lack of Compliance with the Constitution of the Decree of State of Emergency in Ethiopia

(By Getahun S Gesso): I wanted to write this piece after hearing several discussions on different fora and media on what the decree of state of emergency in Ethiopia means? How it affects freedom of expression and of the press? How it interferes with opposition and political space? etc and how the decree should be understood from the stipulations in the constitution itself?

I recall trying to highlight some of the cardinal features of a decree for declaration of state of emergency in my recent article published on www.adebabay.com: What We Know and What We Don't About the Decree of State of Emergency in the Wake of the Ethiopian Protests and Irecha Massacre: What is the way forward? As it was written in the wake of the issuance of the state of emergency, it did not cover certain areas hoping that the actual decree would. However, the scanty Directive published by the government since left much to be desired. Thus, in this article I will further elaborate what can be covered by a decree of state of emergency and what cannot; the levels of authority for its issuance and administration; and a brief assessment of whether the constitution is complied with so far and the benefits of compliance.

Four requirements for state of emergency
Under Art. 93(1) of the constitution, the federal government has authority to declare state of emergency should four circumstances occur: (1) external invasion, (2) breakdown of law and order which endangers the constitutional order and which cannot be controlled by the regular law enforcement agencies and personnel, (3) natural disaster, or (4) epidemic. It is worth noting that regional states can also decree a state-wide state of emergency should the latter two occur.

The government has admitted that the current state of emergency was issued because of widespread breakdown of law and order which endangered the constitutional order and which could not be controlled by the regular law enforcement agencies and personnel. This means that the disorder was beyond control and the very existence of the State of Ethiopia was in danger. Put differently, the conflict between the population and the government had reached a point where the government was overpowered and the constitution was not being followed and/or applied by either side; thus the need to save the State of Ethiopia by suspending the constitution and putting in place a new order! That new order will require the intervention of the military to support the law enforcement task.
“The armed forces shall protect the sovereignty of the country and carry out any responsibilities as may be assigned to them under any state of emergency declared in accordance with the Constitution.” (See Art. 87(3)).

Suspension of political and democratic rights  
Art 93(4) empowers the Council of Ministers to have all necessary powers to protect the country’s peace and sovereignty, and to maintain public security, law and order. It should be noted that the issuance of a decree of state of emergency effectively suspends the application of constitution and its provisions regarding, among others, fundamental human rights and freedoms including civil, political, economic, social, and cultural rights:
“The Council of Ministers shall have the power to suspend such political and democratic rights contained in this Constitution to the extent necessary to avert the conditions that required the declaration of a state of emergency.” (See Art. 93(4)(b).
What one sees in Ethiopia is that political and democratic rights in the constitution, i.e., chapter three’s fundamental rights and freedoms from Art. 13 through 44 can be suspended. There is no distinction between freedom of the press, rights of the opposition, individual or group rights, or others areas of democratic and political rights. All can be suspended subject to the discretion and mercy of the Council. Thus far, however, there is no clarity as to what is exactly suspended and what is not. The only thing that is availed to the public is an unpolished, vaguely drafted Directive (መመሪያ) that does not clarify the extent of its application. It seems to limit each and every right though.

Art 93(4)(c) stipulates: “In the exercise of its emergency powers the Council of Ministers cannot, however, suspend or limit the rights provided for in Articles 1, 18, 25, and sub-Articles 1 and 2 of Article 39 of this Constitution”. This constrains the power of the Council not to suspend or limit rights in four specific areas of the constitution: (1) Art. 1 - the nomenclature “ Federal Democratic Republic of Ethiopia”; (2) Art. 18 - the right to protection against cruel, inhuman or degrading treatment or punishment; (3) Art. 25 - the right to quality before the law and entitlement without any discrimination to the equal protection of the law; and (4) Art. 39 (1) and (2) - the infamous “unconditional right to self-determination, including the right to secession” and the right to speak, to write and to develop one’s own language; to express, to develop and to promote one’s culture; and to preserve one’s history.

It is worth reiterating, therefore, that absent any clarification, it is presumed that all political and democratic rights other than these four are suspended. Also, note that the constitutional requirement of “decree” is translated to mean “proclamation” requiring formal parliamentary approval. As per Art. 55(8) the parliament “shall consider and resolve on a decree of a state of emergency declared by the executive”. The decree must be presented to the parliament within 15 days from issuance for approval by tho-thirds majority, but it’s already over two weeks since the executive declared a state of emergency effective from 8 October 2016.

Constitutionally non-compliant vague Directive made public
It is not clear if the government just wants to continue with the Directive referred to above or it intends to comply with the constitution and issue a proper decree. As availed to the public, the Directive imposes  an array of over 26 tyrannical vague prohibitions ranging from communication to protests to strikes to failure to attend work to carrying any weapon to curfews in certain areas. It categorically prohibits citizens to: talk to perceived opposition and use their communication platforms, watch their news outlets, and listen to their news outlets.

In spite of unduly interfering with substantive human and fundamental rights and freedoms, the Directive falls short of the constitutional threshold at many levels:
1.      It does not fulfill the requirement of parliamentary approval as envisaged in the constitution. Directives are internal implementation mechanisms issued under proclamations and/or regulations. They can be issued by any institution based on a proclamations and/or regulation that authorizes it to do so. Thus, a Directive cannot cover substantive matters of this nature.
2.      The Directive under consideration is not drafted in legal language. It is poorly drafted; and it does not have any preamble to indicate its source/authority and why it is required. It is written in a narrative form rather than a legal format. That creates tremendous lack clarity causing basis for abuse. There is no explanation even as to whether it was discussed by the Council, which should at least be indicated at the bottom end. Rather, it is issued by the Command Post. The Command Post should not be an entity to issue laws but rather maybe to temporarily implement one!
3.      The mandatory exceptions in the constitution to the application of the decree are not carved out. This might mean that implementers could use it in contravention of the constitution.
4.      The penalties for the supposed violations of the Directive are not indicated. If it does not have its own punishment structure, there should have been cross-reference to the Criminal Code. The only thing that it states is the powers of the Command Post to indoctrinate arrestees and release them within the period of the decree. Note that the decree can be extended beyond the 6 months for 4 months each. Thus people can be detained indefinitely. Think of the possible human rights violations in the event such extensions unduly continue.

The need for establishment of State of Emergency Inquiry Board
The submission of the decree to the parliament for approval will also facilitate and ensure the establishment of a “State of Emergency Inquiry Board” as required under Art. 93(5) of the constitution: “The House of Peoples’ Representatives, while declaring a state of emergency, shall simultaneously establish a State of Emergency Inquiry Board, comprising of seven persons to be chosen and assigned by the House from among its members and from legal experts.” This is supposed to be part of the decree.

What the government has set-up is a Command Post, which, as can be seen from its name, should only be limited to the implementation of the state of emergency under the constitutional frameworks. However, the Command Post seems to have taken control of all the process apparently in contravention of the constitution. The constitution, after outlining the composition of the State of Emergency Inquiry Board, assigns it with the following substantive powers ad responsibilities to:
1.      Make public within one month the names of all individuals arrested on account of the state of emergency together with the reasons for their arrest.
2.      Inspect and follow up that no measure taken during the state of emergency is inhumane.
3.      Recommend to the Prime Minister or to the Council of Ministers corrective measures if it finds and case of inhumane treatment.
4.      Ensure the prosecution of perpetrators of inhumane acts.
5.      Submit its views to the House of Peoples’ Representatives on a request to extend the duration of the state of emergency.

As it appears from the statements from the Command Post and the preparation and issuance of the above mentioned Directive, this constitutional task of the State of Emergency Inquiry Board has been hijacked from it. The Command Post has already started publicizing the number of individuals arrested so far.

It is obvious from the saving clauses under Art. 18 and Art. 25 discussed above as well as the powers bestowed on the Board that the country wishes to comply with an important international human rights convention, i.e., the UN Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (1984) to which Ethiopia is a party. It is worth noting that Art. 9 and Art Art. 87(4) of the constitution read together oblige everyone including the armed forces to at all times obey and respect the Constitution. There is no exception to that.

Conclusion
However, the process is yet to follow the constitutionally enshrined processes. The Ethiopian government should for once stop cherry-picking the constitutional provisions only when they favor it and apply it strictly. There is need for return to a constitutional order that complies with the requirements for issuance and administration of a state emergency before it is too late. Otherwise, inhumane treatments are bound to be extensive in the absence of clear laws. This disregard will open room for abusive elements and only exacerbate the soaring conflict between the public and the government.



The author can be reached via geta.mia@gmail.com

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