The Practice of Informal Changes to the Ethiopian Constitution in the Course of Application

Author:Nigussie Afesha
Position:Nigussie Afesha, (Asst. Professor) at Hawassa University, College of Law and Governance, School of Law.
Pages:366-399
SUMMARY

Given the generality of a constitution, it requires amendments in order to enable it to cope up with the socio-economic and political dynamics. As a result, formal constitutional amendment procedures have remained vital mechanisms in this regard. However, the rigidity of formal constitutional amendment procedures and/or the political context of a country have often kept constitutions static and... (see full summary)

 
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366
The Practice of Informal Changes to the
Ethiopian Constitution in the Course of
Application
Nigussie Afesha
“Where the natural path of formal amendment is difficult or blocked, alternative
paths open to political actors to achieve its functional equivalent.”
Richard Albert 1
Abstract
Given the generality of a constitution, it requires amendments in order to enable it
to cope up with the socio-economic and political dynamics. As a result, formal
constitutional amendment procedures have remained vital mechanisms in this
regard. However, the rigidity of formal constitutional amendment procedures
and/or the political context of a country have often kept constitutions static and
frequently induce politicians to look for alternatives. Informal constitutional
amendment mechanisms are thus designed in response to the difficulty of formally
amending the constitution. In this sense, the role of non-constitutional mechanisms
in the alteration of a constitution is essential. The FDRE Constitution encompasses
a constitutional provision that spells out how the Constitution can be amended.
However, there has not yet been a single formal constitutional amendment. This
article examines instances of actual but unwritten constitutional changes in the
course of application that have been occurring in Ethiopia for which formal
constitutional amendment cannot account for. These include constitutional changes
through constitutional interpretation, or by legislation. The article contends that
there are time-honoured practices that regulate and continue to guide the course of
the Ethiopian federal state in contradiction to the Constitution. Equally important,
party structure also influences the federal distribution of power.
Key terms
FDRE Constitution, informal constitutional changes, constitutional amendment,
constitutional interpretation, political custom, law enforcement, Ethiopia.
DOI http://dx.doi.org/10.4314/mlr.v10i2.4
Nigussie Afesha, (Asst. Professor) at Hawassa University, College of Law and
Governance, School of Law.
I thank Bisrat Mulugeta for his comments and helpful discussion. I am also grateful to
Elias N. Stebek (for his invaluable comments and insightful suggestions) and the
anonymous reviewers for their contributions toward the improvement of the article.
1 Richard Albert (2014), “Constitutional Disuse or Desuetude: The Case of Article V,
Boston College Law School”, Legal Studies R esearch Paper Series, No, 327 p. 1062.
The Practice of Informal Changes to the Ethiopian Constitution … 367
Introduction
A constitution outlines the major principles and the basic organization, structure,
and process of a state.2 Most of its content is brief, and “constitutions, by their
nature, operate in time, seeking to regulate the future on behalf of the past.”3
Many drafters of constitutions act as if their handiwork should last for a long
period of time.4 Indeed, every normative constitutional theory presumes that
constitutions are able to function over a relatively extended period of time.
Without endurance, constitutions cannot provide a stable basis of politics. This
assumption of endurance is built into the very idea of a constitution and closely
related to core normative issues, such as constitutional amendment.5
The idea of constitutional amendment stems from the argument that no
generation has a monopoly on knowledge enabling it to bind future generations
irreversibly, and that “a constitution that will not bend will break”.6 There is
thus an ‘inherent right’ to amend a constitution in order to perfect
‘imperfections’ and to strengthen its provisions where necessary.7 Amendment
denotes the idea of making correction or improvement in the text of a written
constitution.8 Formal constitutional amendment is more of a norm and continues
as a widely shared and intrinsic quality of national constitutions.9 The primary
means of legitimate adjustment on constitutional document is a formal
procedure specified in the Constitution itself.10 It is equally important to bear in
2 Donald J. Boudreaux and A. C. Pritchard (1993), Rewriting the Constitution: An Economic
Analysis of the Constitutional Amendment Process, Fordham L. Rev. Vol., 62, Pp. 111-
162, p. 111.
3 Tom Ginsburg (2011), “Constitutional endurance” in Tom Ginsburg and Rosalind Dixon,
eds., Comparative Constitutional Law, Edward Elgar Publishing, p. 112.
4 Ibid.
5 Ibid.
6 John Hatchard, Muna Ndulo, Peter Slinn (2004), Comparative Constitutionalism and Good
governance in the Commonwealth: An Eastern and Southern African Perspective,
Cambridge University Press, New York, pp. 44-45.
7 Ibid.
8 Rosalind Dixon (2011), “Constitutional Amendment Rules: A Comparative Perspective” in
Tom Ginsburg and Rosalind Dixon, eds ., Comparative Constitutional Law, Edward Elgar
Publishing, p 96.
9 Ibid.
10 Bjørn Erik Rasch, (2008), Foundations of Constitutional Stability: Veto Points, Qualified
Majorities, and Agenda-Setting Rules in Amendment Procedures, A Paper presented at the
ECPR Joint Sessions of Workshops Rennes, France, April 11-16, 2008 pp. 3-
4[Hereinafter called, Bjørn Erik Rasch, Foundations of Constitutional Stability].
368 MIZAN LAW REVIEW, Vol. 10, No.2 December 2016
mind that the more fundamental the constitutional change, the weightier
becomes the reason for resorting to formal processes.11
However, there are arguments over the function of formal procedures for
constitutional amendment and comparative difficulty of such processes.12 Most
constitutional scholars agree that not all forms of constitutional change in fact
involve formal constitutional amendment processes. Some even have suggested,
ultimately formal constitutional amendments will be irrelevant to shape
constitutional meaning.13 Irrespective of these arguments, constitutions have
special procedures and require the involvement of majorities for their
amendment, often requiring some measure of consent from the legislatures or
the public.14 Nevertheless, amendment rules have often made constitutions
difficult to change and the politics of their constitutional amendment has proven
to be very divisive. As a consequence, several countries frequently look for
alternatives to formal constitutional amendment mechanisms.15 In this regard,
the role of non-constitutional mechanisms in the alteration of the Constitution is
essential. In particular, the function, relation and co-existence of formal and
non-formal constitutional amendment mechanisms need to be clearly spelled
out. The extent to which and the circumstances under which informal
constitutional mechanisms modify the contents of a given constitution need to
be ascertained.
The FDRE Constitution expressly provides for the mechanisms of its
modification which includes, setting different amendment formula to amend
various sections of the Constitution.16 The Constitution also expresses that a
proposed constitutional amendment is required to be submitted for discussion
and decision to the general public and to those whom the amendment of the
Constitution concerns.17 Despite this fact, the Constitution has not undertaken
any formal amendment so far. The exception to this was the move to amend
article 9818 of the Constitution, titled ‘concurrent power of taxation’ that gave
the federal government the legislative and executive power over the concurrent
taxation restricting the power of the state only to get the proceeds thereof.
11 Getachew Assefa (2012), Ethiopian Constitutional Law with Comparative Notes and
Materials: A Text book, p. 103.
12 Ibid.
13 Id., p. 100.
14 George Anderson (2008), Federalism: An Introduction, Oxford University Press, p 59.
15 Ibid.
16 See article 105 of the FDRE Constitution.
17 Id., article 104.
18 Solomon Negussie (2008), Fiscal Federalism in the Ethiopian Ethnic-based Federal
System, Rev. ed. Netherlands Wolf legal publishers p.64.

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