—Dunia Mekonnen Tegegn, Human Rights Lawyer and Gender Equality Advocate
Except for mentioning the term ‘minorities’ and reserving 20 seats under article 54(3), the FDRE Constitution does not define the term minorities. However, other laws have discussed minorities. The transnational proclamation No. 7/1992 under Article 2(6) defines minority nationality: a nationality or people who can’t establish their own self-government due to their small population. Proclamation No 111/1995, which made electoral constituencies to be determined based on 100, 000 inhabitants, defined minority nationalities under article 15/2 as those ethnic groups whose number is below 100,000 and hence unable to form their constituency. The newly enacted electoral Proclamation 1162/2019 under article 13(1) (d) underlines that the special representation of minority nationalities shall be determined by the House of Federation based on clear criteria to be established by the same organ. The FDRE constitution, apart from talking about minorities under article 54(2), doesn’t say anything about minorities and their protection under the constitution. All the protections foreseen in the constitution are for what the Constitution calls ‘nation, nationalities, and people.’ Nation, nationalities, and people are the subjects of the ultimate state power and the authors of the constitution.
All regional states of the Ethiopian federation, to a lesser or greater degree, exhibit ethnic heterogeneity leading to the creation of a majority-minority dichotomy at the regional level. The act of drawing regional boundaries based on the major ethnic groups has resulted in the creation of minority ethnic groups in each of these regions. The application of government power at the regional level is reserved completely for the majority ethnic groups. In the significant number of regional states, the respective constitution considers a certain ethnic group/s the owner of the regional state while denying the same to other ethnic groups, who unfortunately aren’t on the list. These denials of the right of regional minorities range from excluding them politically to economic discrimination. In addition, no special or preferential treatment is documented for minorities in the identified regions. This article highlights rights violations under some regional constitutions of Ethiopia and proposes measures to safeguard the rights of such minorities.
Fundamental rights violations under the regional constitutions of Ethiopia
A right to exist and maintain one’s separate identity
The constitutions of Benishangul Gumuz, Gambela, Oromia, Harari, Afar, and Sidama do not recognize the right to exist and maintain one’s separate identity. A right to exist and maintain one’s separate identity is recognized under the FDRE Constitution and other international human rights instruments particularly, the International Covenant on Civil and Political Rights which Ethiopia is a party to. However, despite these guarantees both under the ICCPR and the FDRE Constitution, most of the regional constitutions, including the Constitution of the newly formed State of Sidama, failed to acknowledge the non-dominant ethnic groups’ right to preserve and maintain their identity, language, and culture. None of the state constitutions, except the Constitutions of the Amhara and Tigray regions recognize the existence of other ethnic group/s other than the ethnic group/s which are deemed the owner/s of the state. The Amhara Constitution starts by saying ‘we the people of the Amhara regional state’ rather than saying “we the Amhara nation”. The preamble of the revised Tigray constitution also begins with “we, the people of the Tigray National Regional State” as opposed to “We the Tigray Nation”.
Some of Ethiopia’s regional constitutions openly deny the existence of other ethnic group/s other than the ethnic group/s that is/ that are regarded as the owner/s of the region. An example of this is the Benishangul regional Constitution which in its article 2 states that “irrespective of the existence of other nation and nationalities in the region, only the following nationalities are the owners of the region: Bertha, Gumuth, Sinsha, Mao and Komo”. When we also see the preamble of the Constitution of the Gambela regional state only the Newre, Agnwea, Mezneger, Aoplo, and Komo ethnic groups are listed as the authors of the Constitution in a way acknowledging them as the owners of the region. The same goes true as far as the Constitutions of the Oromo, Afar, Somalia, Harari, and Sidama. The preamble of these constitutions gives the ownership of the states to a particular group disregarding other ethnic groups. Even the Constitution of the Southern Nations and Nationalities (which is unique in its very formation) is exclusionary as far as ethnic minorities are concerned by only referring to the Southern nation, nationalities, and people limiting its application to the indigenous nation, nationalities, and people of the region. On the other hand, in Southern Tigray and Qemant areas, multi-faceted identities reflect the fluidity of ethnicity, and therefore arguably create challenges inherent in organizing administrative structures which has their own implication on the exercise of political rights for minorities in these particular places.
Political participation and representation of minorities
A right to political participation and representation is an important right that determines the enjoyment of all other rights of minorities. The Constitution guarantees everyone – individually and as a group (nation, nationality, and people) – a right to political participation. The guarantee for nation, nationalities, and people’s to actively participate in politics is particularly significant as the whole federal structuring is based on empowering nation, nationalities and people. Nation, nationalities, and people are the authors and the ultimate holders of state power under the Constitution. Nation, nationalities, and people – irrespective of their number – are constitutionally guaranteed to self-administer and enjoy an effective representation under state institutions. However, despite these guarantees under the FDRE Constitution, nearly all state constitutions have failed to extend similar guarantees to all nations, nationalities, and people living in their respective territory.
The state constitutions disregard the guarantees under the federal Constitution though they all pronounce the supremacy of the federal Constitution. This clear contravention is disregarding the provisions of the federal Constitution that require state constitutions to be drafted, approved, and amended in accordance with the federal Constitution. The federal Constitution is also the supreme law which any law, customary practices, and decisions of state organs and government officials must not contravene with. The ramification of not considering these minorities as distinct that form part of the state’s political community is immense. Most importantly, it puts them out of a constitutional spectacle and hence can’t, in principle, claim constitutional protection provided for the majority group. In an ethnically organized system of government, the recognition of minorities as distinctive groups that form part of the state’s political community determines their political participation either by way of self-administering themselves or through an effective representation within state’s institutions. Moreover, all state constitutions anticipate the establishment of a Constitutional Interpretation Commission (CIC) – which is an equivalent of the House of Federation at the federal level- with the power to interpret the respective regional constitutions. In the majority of states, members of the CIC are composed of representatives from each ‘Wereda’ (smallest government structures of Ethiopia) council.
The ‘Wereda’ councils, on the other hand, are filled by members of the dominant ethnic groups. However, the experience in the Amhara, and Southern Nations Nationalities and People’s regional (SNNPR) state is slightly different in this regard. Unlike the case in most of the regional states, the CIC in the Amhara regional state is composed of representatives both from the ‘Wereda’, and nationality councils. As such, minority nationalities have an opportunity to get represented in the regional CIC. The case in SNNP is also a bit different. To begin with, the SNNP has an exact similar body with the House of Federation which is called the Nationality Council. Each nation and nationality would have one representative and one more for their one million additional populations. The representatives are chosen from the ‘Zone’ council, ‘Wereda’ and ‘Special Wereda’ councils. Yet, the problem in the SNNP is that for nationalities to be represented in the Nationality Council, they need to first secure the status of nationality from the Nationality Council itself. Unfortunately, the process of securing a nationality status has not been an essay procedure.
Socio-economic rights of minorities
The International Covenant on Economic, Social and Cultural Rights ( ICESCR) protects everyone’s rights to social security (article 9); an adequate standard of living – including food, clothing, and housing (Article 11(1)); the highest attainable standard of physical and mental health (Article 12); and education (article 13). The fundamental right to equality and non-discrimination is also at the heart of human rights law and is part of all major international and regional human rights treaties. The federal Constitution recognizes socio-economic rights in the form of obligation on the government. Article 41 recognizes the right to engage freely in economic activity, to pursue a livelihood of one’s choice anywhere within the national territory, to choose his/her means of livelihood, occupation, and profession (art. 41(1&2). It also guarantees that every citizen has the right to equal access to publicly funded social services (art. 41(3)). The state is also under an obligation to allocate ever-increasing resources to provide public health, education, and other social services.
Sub-national constitutions also copied these provisions of the federal Constitution by adapting them to their regional state. For example, the revised Constitution of Oromia Regional State provides, under article 41, that ‘Every resident of the Region or any Ethiopian who chooses to reside in the Region has the right to engage in any economic activity of his/her choice and to pursue the livelihood of his/her choice’. Similar provisions could also be found in the constitutions of other regional states. While most regional states are homes to a significant number of minorities, the constitutions failed to tailor their provisions in a manner that guarantees socio-economic rights. The constitutions instead assumed a similar treatment of minorities and afforded no separate provision.
Conclusions and recommendations
The experience of Ethiopia’s mass internal displacement of minorities over the past years is indicative of the gross violations of minorities’ rights which primarily emanate from the lack of formal legal recognition and protection under existing regional constitutions. Economic rights such as the right to pursue a livelihood of one’s choice anywhere within the national territory continue to be a cause for concern in different regional states. On the political front, protests over marginalization have been met with government crackdowns for so long in the country. Adding the safety concerns of targeted societies, Ethiopia’s trajectory to transition to democracy and equality is imperiled.
As it stands now, the priority should be the vulnerable society whose plights can only be addressed through broader efforts including concrete legal reform that addresses barriers to equal protection by building up on already initiated legal reform work. Such work should not ignore the active participation of targeted minority groups.
Suggested citation: Dunia Mekonnen Tegegn, Addressing the Plights of Minorities under Ethiopia’s Ethnic Federal Structure: A Call for Legal Reform, Int’l J. Const. L. Blog, July 16, 2022, at: http://www.iconnectblog.com/2022/07/addressing-the-plights-of-minorities-under-ethiopias-ethnic-federal-structure-a-call-for-legal-reform/