—Berihun Adugna Gebeye, Humboldt Postdoctoral Research Fellow, Max Planck Institute for Comparative Public Law and International Law, Heidelberg
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
In my first column, back in January 2021, I wrote about Ethiopia’s constitutional crisis. Within a year, that constitutional crisis has grown into a state crisis. Now, the territorial integrity and political unity of Ethiopia are in question, and its people are under devastating conditions and pitted against each other by their elites and great power politics. Since the start of the war in November 2020, Ethiopia has been on the agenda of the United Nations Security Council (UNSC) almost every month. Each time, the members of the UNSC express their commitment to the territorial integrity and political unity of Ethiopia as they push for the peaceful resolution of the ongoing war between the Tigray People’s Liberation Front (TPLF)- i.e., the ruling party in Tigray regional state- and the federal government. They also indicate that the conflict should be solved in line with Ethiopia’s Constitution. But unlike the members of the UNSC, the Ethiopian Constitution is not committed to the territorial integrity and political unity of the country. Considering the political developments since the start of the war, solving the current crisis through constitutional means could end Ethiopia as we know it, and this is partly why, I believe, the Constitution is not helpful to bring durable peace not only in Ethiopia but also in the entire Horn of African region. Here is why.
Ethiopia is a federation, but a different kind where more than 80 ethnolinguistic groups can secede anytime without even providing any justification as a matter of constitutional right. Thus, the Ethiopian federation is a “federation of convenience”, and this differentiates Ethiopian federalism from the federal systems of many democratic states. Whether a federal system is adopted out of considerations of security, economic prosperity, freedom, and democracy – as in many Western federal democracies such as the United States– or it is adopted as an accommodation mechanism for ethnic, religious, and linguistic diversity – as in many post-Second World War federal systems such as Nigeria or India, a democratic federal system formally commits to the continuity and indivisibility of the federal union. Democratic federalism, then, is like a marriage vow by which constituent units of a federation take each other ‘to have and to hold from this day forward … until death do us part.’ Here the claim is not that the promise of indivisibility alone would bring a perpetual union. Rather, as a matter of political theory and practice, democratic federations make a solemn commitment to their continuity. Whether such federations would continue to exist is contingent upon several factors both within and beyond them. But Ethiopian federalism has no such solemn commitment.
The Ethiopian federalism is established based on the principle of the right to self-determination including the right to secession of ethnic groups. According to the Constitution, the various ethnic groups, using their right to self-determination, come together to form one political and economic community known as the Federal Democratic Republic of Ethiopia. Article 39 of the Constitution also recognizes the ethnic groups’ “unconditional right to self-determination including the right to secession.” Unlike federal systems elsewhere, which have built their federal systems on the notion of the indivisibility of the state, Ethiopia established its federalism based on the normative commitment of the divisibility of the state.
Why Ethiopia chose this federation of convenience has a long and complicated political and historical context that dates back to the student movement of the 1960s and 1970s related to the so-called “question of nationalities”. The question of nationalities was about the nature of the Ethiopian state and the pre-existing ethnic relations in the country. A radical student movement group advanced the idea that Ethiopia was a “prison house of nationalities” like Tsarist Russia and that it marginalized many of its ethnic groups in its socio-economic, cultural, and political make-up. The solution to the question of nationalities, they proposed, was the recognition of the right to self-determination including the right to secession of each nationality or ethnic group.
The removal of the military regime that ruled Ethiopia from 1974-1991 by ethnonational armed groups such as the Eritrean People’s Liberation Front (EPLF) and the TPLF who shared similar views with the radical student movement made the restructuring of the Ethiopian state based on the principle of the right to self-determination including the right to secession possible. In 1993, Eritrea voted on its independence from Ethiopia and has become an independent state. After two years in a highly controlled constitution-making process, the Ethiopian People’s Revolutionary Democratic Front (EPRDF) – a coalition of four ethnic-based parties dominated by the TPLF that ruled Ethiopia from 1991-2018- restructured the Ethiopian state along ethnic federalism guaranteeing each ethnic group the right to secession in a brand-new constitution. Hence, as Alexander Hamilton noted in The Federalist No. 1, the Ethiopian choice for ethnic federalism was more a result of “accident and force” rather than the result of people’s “reflection and choice”.
Article 39 is the most contested, yet mostly dormant, provision of the Ethiopian Constitution. Now, the war has activated this provision, and it is not an exaggeration if I say that any constitutional talk either expressly or impliedly refers to Article 39 and the territorial and political conditions it has created in the past or it will create in the future. In both ways, Article 39 currently poses a threat to the territorial integrity and political unity of Ethiopia. Some argued that the provision was included as a token assurance for the various ethnonational forces during the making of the Constitution, and some others contended how difficult it is to enforce this provision in part due to its complicated procedure and in part due to the authoritarian political culture of the country. While these arguments may have held some truth in the past, the war has changed both the demand and supply side of the right to self-determination including secession and the political context of the country, which could make the enforcement of Article 39 quite possible. Article 39(4) provides the following procedure to effectuate the right to self-determination including secession:
The right to self-determination, including secession, of every Nation, Nationality and People shall come into effect:
(a) When a demand for secession has been approved by a two-thirds majority of the members of the Legislative Council of the Nation, Nationality or People concerned;
(b) When the Federal Government has organized a referendum which must take place within three years from the time it received the concerned council’s decision for secession;
(c) When the demand for secession is supported by a majority vote in the referendum;
(d) When the Federal Government will have transferred its powers to the Council of the Nation, Nationality or People who has voted to secede; and
(e) When the division of assets is effected in a manner prescribed by law.
As is evident from this provision, an ethnic group that approves its demand for secession through its legislative council and its own referendum organized by the federal government can become a sovereign state. At this time, this constitutional procedure is not difficult, at least related to Tigray, regardless of their decision to remain or secede. The leaders of the TPLF have indicated that the future of Tigray will be decided by itself in a referendum. And the federal government seemed to defer such a decision to the people of Tigray when it announced the unilateral ceasefire in June 2021.
Secession is an inherently political issue. If people really want secession and have what it takes to secede, they could have it whether the right to secession is constitutionally recognized or not. In virtue of this, it is up to the people of Tigray to decide their future. But exercising such right within the constitutional framework could undermine the rights and interests of Ethiopia’s other 80 ethnic groups simply because the federal government has neither the constitutional mechanism, nor, as it stands now, the political and security mechanisms, to resolve the disagreements that might arise among the remaining ethnic groups about the future of the country. Fundamentally, effectuating the right to self-determination including secession within the constitutional framework could put the entire country on a referendum: it could be a referendum on Ethiopia itself. And if some ethnic groups decide to secede, as Eritrea did in 1993, it could generate a serious threat to international peace and security. The international community should avoid such possible eventuality by pushing the warring parties to resolve the war on new terms and conditions rather than forcing them to solve it through constitutional means.
Additionally, as I wrote in my first column, the constitutional contestations between the TPLF and the federal government led to a “constituticide” and that the Constitution ceased to be a legal arbiter for these actors. I think this was valid then and is valid now. Any serious attempt to bring durable peace in Ethiopia and to the Horn of African region must recognize that the war is a result of a constitutional breakdown and that we cannot solve the problem by the very tools that have brought about and structured it. As Olusegun Obasanjo, the High representative of the Chairperson of the African Union Commission for the Horn of Africa, noted in his recent statement on the prospects for peace in Ethiopia, “war represents a failure of politics.” And this is also true for Ethiopia. The Constitution was supposed to be a response to the question of nationalities, which according to the late Ethiopian Prime Minister Meles Zenawi, was “the issue of peace and war.” By answering the question of nationalities, through the recognition of the right to self-determination including secession, the writers of the Constitution proclaimed that they solved the issue of peace and war in the country. But twenty-five years after the adoption of the Constitution, Ethiopia is at war with itself, again in Northern Ethiopia, the epicenter of war some three decades ago. And trying to solve the current problem with old and broken political and constitutional settlements could be a promissory note for a future war and instability, not peace.
Ethiopia needs a new way of thinking about itself and a new way of doing politics whose terms, conditions, and vocabularies should emerge from its present contexts, past experiences, and future trajectories, which, in turn, could offer some therapeutic opportunities to heal social and political division and to lay a new democratic foundation for the country. Despite the devastating impacts of the war on human lives and livelihoods and on personal, social, cultural, and political relations, durable peace is possible in a democratic Ethiopia. To use Hamilton’s great words once more, the question for Ethiopia and Ethiopians is whether they can resolve the current crisis through their “reflection and choice,” or will they depend on “accident and force” as they did in 1974 and 1995? And the question for the international community is whether they can help create conditions for Ethiopia and Ethiopian’s quest for democratic constitution through their “reflection and choice” or will they simply facilitate “accident and force” to take its course?
Suggested citation: Berihun Adugna Gebeye, Why Ethiopia’s Crisis Needs a New Constitutional Settlement, Int’l J. Const. L. Blog, Nov. 24, 2021, at: http://www.iconnectblog.com/2021/11/why-ethiopias-crisis-needs-a-new-constitutional-settlement/
 See David Turton (eds), Ethnic Federalism: The Ethiopian Experience in a Comparative Perspective (James Currey/Ohio University Press 2006).
 See Sanford Levinson, ‘Perpetual Union, Free Love, and Secession: On the Limits to the Consent of the Governed’ (2013) 39 Tulsa L. Rev. 457.
 The Constitution of Ethiopia 1995, Preamble and Article 1.
 Bahru Zewde, The Quest for Socialist Utopia: The Ethiopian Student Movement, 1960-1974 (Oxford/Addis Ababa: James Currey/Ohio University Press/Addis Ababa University Press 2014) 187-228.
 Alem Habtu, 2005. ‘Multiethnic Federalism in Ethiopia: A Study of the Secession Clause in the Constitution’ (2005) 35 Publius: The Journal of Federalism2: 313-335.
 Lovise Aalen, ‘Ethnic Federalism in a Dominant Party State: The Ethiopian Experience 1991-2000’ (2002) R 2002:2 CMI Report 40.
 As I show in my book, the international community plays a significant role in the political developments of African states, and they could use such a role for genuine democratic development. For details see Berihun Adugna Gebeye, A Theory of African Constitutionalism (Oxford University Press 2021).