by Alemayehu G. Mariam
Over the past few months, I have been penning occasional commentaries in a series I called “Ethiopia’s transition from dictatorship and democracy”.
In my last such commentary,
I argued that “on the bridge to democracy, there is often a collision
between individuals and groups doggedly pursuing power, the common
people tired of those who abuse and misuse power and the dictators who
want to cling to power. The chaos that occurs on the transitional
bridge from dictatorship to democracy creates the ideal conditions for
the hijacking of political power, theft of democracy and the
reinstitution of dictatorship in the name of democracy.” In this
commentary, I focus on the need for constitutional “pre-dialogue”
(preparatory conversations) in anticipation of some potential roadblocks
on Ethiopia’s inexorable march to a constitutional democracy.
Roadblocks to Democracy
Most
societies that have sought to make a transition from tyranny and
dictatorship to democracy have faced challenging and complex roadblocks.
After the Americans effectively ended Britain’s tyrannical rule in
1776, the 13 colonies experimented on their own until 1781 when they
signed articles of confederation creating a loose political association
and a national government. That effort failed because the states had
reserved important powers over commerce, foreign trade and affairs to
themselves and denied the national government the power to tax, raise an
army or regulate trade. They overcame these and other major problems
when they adopted their current constitution in 1787.
More recent
history shows the extraordinary difficulties countries face in
transitioning from dictatorship to democracy. Since the collapse of the
Soviet Union and the dissolution of communist regimes behind the Iron
Curtain, the transition democracy has been difficult and incomplete. The
wave of democratization in the Eastern Bloc countries and the former
Soviet states in the 1990s lifted only a few of them into the ranks of
liberal democracies with free elections, multiparty democracy,
independent media and judiciary and so on. Various explanations have
been offered for the stillbirth of democracy in these countries. One
persuasive explanation suggests that in those countries where democracy
succeeded, there were strong democratic forces with sufficient power to
impose hegemony on supporters of the moribund communist dictatorships.
Dictatorships reinvented themselves and reemerged in new configurations
where supporters of the previous dictatorship maintained a decisive
power advantage.
The “Arab Spring” that signaled the dawn of
democracy in Libya, Egypt, Tunisia, Yemen and other Middle Eastern
countries today faces formidable challenges. In Egypt, the “interim”
military government runs the transition to constitutional civilian rule.
The sly military fox is guarding the henhouse of democracy in Egypt.
Many Egyptians openly question whether the military is window dressing
democracy to whisk Egypt back to the old Mubarak-style dictatorship with
a democratic façade. The fact that Mubarak’s last prime minister, Ahmed
Shafiq, is a leading candidate (and widely perceived as shoo-in) in the
presidential race in mid-June lends support to the cynical view that
the more things change in Egypt, the more they remain the same. But more
alarming is the fact that since the onset of the revolution in Tahrir
Square in January 2011, there have been more than 12,000 Egyptians
arrested and many brought to trial before military courts on a variety
of questionable charges. Many respected human rights organizations have
been subjected to harassment and investigation for “treason” by the
state security prosecutor’s office. Is Egypt skating on the slippery
slope of dictatorship?
In Tunisia, the Constitutional Assembly
elected last October to draft a new Constitution within one year seems
to show some hopeful signs. The most encouraging sign comes from the
fact that the constitutional drafters do not seems preoccupied with
time consuming divisive political issue but instead are focusing their
efforts on establishing a robust constitutional structure that addresses
potential abuses of power and prevent the future rise of a
dictatorship. Using different “commissions”, the drafters are discussing
the suitability of parliamentary or presidential systems, the
structural controls needed to maintain the balance of power in the
branches of government and institutionalizing legislative oversight of
the executive branch, the need for a constitutional court,
decentralization of power and other issues.
Libya’s progress on
the road to democracy is not very encouraging. In August 2011, an
anonymously published “Draft Constitutional Charter for the
Transitional Stage” of Libya was circulated widely. It seemed to be a
cut-and-paste job festooned with the buzzwords of Western liberal
democracies about the rule of law, personal freedoms of speech and
religion, multiparty democracy and so on. Other drafts are also in
circulation. This past March a 60-person constitution drafting committee
was appointed equally representing Libya’s three main regions. But it
seems the Libyans have more urgent problems of stability and security.
In the absence of an effective national army, the ragtag army of
revolutionary fighters and militiamen who overthrew Gadhafi continue to
clash with each other and operate in their respective areas with
impunity. The silver lining in the dark constitutional cloud over Libya
appears to be the existence of independent groups of Libyan lawyers,
jurists, scholars, intellectuals and others hard at work preparing draft
constitutions. Though such disparate efforts could contribute to the
existing constitutional chaos and confusion, it could ultimately
contribute to broader public awareness and participation in the
constitution-making process in Libya.
Roadblocks to Constitutional Democracy in Ethiopia?
Not
unlike the “Arab Spring” countries, Ethiopia will likely face the
critical question of what to do with the current constitution after the
fall of the ruling dictatorship. One could reasonably expect vociferous
calls for the adoption of an interim constitution (assuming the military
will not make a naked power grab) and establish a transitional
government. The Ethiopian Constitution was originally engineered by
one-man to divide, rule and control and for one party to exert total
domination. Its general application has been minimal. Its provisions are
systematically and routinely ignored, avoided and overlooked by the
ruling dictatorship (see reference below to the recent U.S. State
Department’s Country Reports on Human Rights Practices for Ethiopia).
There is widespread dissatisfaction about its uses, misuses and abuses
by the ruling party and its iron-fisted leader; and there are compelling
reasons for dissatisfaction. In 2009,
the International Crises Group,
a highly respected non-partisan and independent organization which
gives advice on the prevention and resolution of deadly conflict to the
United Nations, European Union and World Bank, pinpointed one of the
most contentious issues that has caused wide dissatisfaction:
The
EPRDF’s ethnic federalism has not dampened conflict, but rather
increased competition among groups that vie over land and natural
resources, as well as administrative boundaries and government budgets.
Furthermore, ethnic federalism has failed to resolve the “national
question”. The EPRDF’s ethnic policy has empowered some groups but has
not been accompanied by dialogue and reconciliation. For Amhara and
national elites, ethnic federalism impedes a strong, unitary
nation-state. For ethno-national rebel groups like the ONLF (Ogaden
National Liberation Front; Somalis in the Ogaden) and OLF (Oromo
Liberation Front; the Oromo), ethnic federalism remains artificial.
Accountability
for abuses of power, human rights violations and corruption are equally
likely to be compelling reasons for an interim constitution. This is
evident in the findings of the recently issued
U.S. State Department’s Country Reports on Human Rights Practices for 2011:
Membership
in the EPRDF [the ruling party] conferred advantages upon its members;
the party directly owned many businesses and was broadly perceived to
award jobs and business contracts to loyal supporters. The opposition
reported that in many instances local authorities told its members to
renounce their party membership and join the EPRDF if they wanted access
to subsidized seeds and fertilizer; food relief; civil service job
assignment, promotion, or retention; student university assignment and
postgraduate employment; and other benefits controlled by the
government… Some government officials appeared to manipulate the
privatization process, and state- and party-owned businesses received
preferential access to land leases and credit…
The
law requires authorities to obtain judicial warrants to search private
property; however, in practice police often ignored the law… The
government reportedly used a widespread system of paid informants to
report on the activities of particular individuals… Security forces
continued to detain family members of persons sought for questioning by
the government…The national government and regional governments
continued to put in place “villagization” plans in the Gambella,
Benishangul-Gumuz, and Somali regions… According to the [Human Rights
Watch] report, security forces beat (sometimes leading to death),
threatened, arrested without charge, and detained persons who were
critical of planned villagization of their communities, and this caused
persons to fear speaking out against the process… While the constitution
and law provide for freedom of speech and press, the government did not
respect these rights in practice… The government continued to arrest,
harass, and prosecute journalists, publishers, and editors… Students in
schools and universities were indoctrinated in the core precepts of the
ruling EPDRF party’s concept of ‘revolutionary democracy’…
Learning From the Mistakes and Successes of Others: Pre-Dialogue for a Constitution-Making Process in Ethiopia
If
the recent history of upheavals in North Africa offers a lesson to
Ethiopia, it is the fact that it will likely necessary to establish a
“caretaker government” to lead in the transitional period. Such a
government could facilitate governance during the transitional period,
expedite the drafting of a permanent constitution and address critical
political and security issues that may arise until a democratically
elected government is installed. Although one could endlessly speculate
on alternative scenarios in the aftermath of the fall of dictatorship in
Ethiopia (including direct military intervention, installation of
pre-arranged leaders by international interests, severe political
strife, a “unity government”, etc.,), the important thing in my view is
to start an informed constitutional conversation (a “pre-dialogue”) now,
and not wait for some some dramatic event to happen to begin
discussion.
One of the important lessons of the “Arab Spring” is
that those who led the struggle against dictatorship had failed to
seriously consider the question of who should lead the constitutional
review and drafting process in the transitional period. Western nations
were too eager to bridge the gap by sending their constitutional
experts, specialists, scholars and tons of instructional materials on
how to structure a robust democratic constitution. National stakeholders
representing political parties and organizations were quickly organized
as transitional governments and allowed to operate within the
parameters set by the military backing them up. This approach to
“democratization” has not been particularly conducive to giving voice
and allowing meaningful participation by ordinary citizens, civic
society and grassroots organizations. As a result, it appears the
constitution-making efforts in those countries undergoing the proverbial
“Spring” reflects the general desires and wishes of the elites much
more than the ordinary citizens who do not have sufficient familiarity
with the process or the substance of the draft constitutional
provisions.
This underscores the importance of inclusiveness of
all segments of society in any constitutional pre-dialogue (and
dialogue) in Ethiopia and in the Ethiopian Diaspora. An elite and
expert-driven dialogue which excludes or underrepresents grassroots and
civil society organizations is likely to be an exercise in
constitutional window-dressing. While expert and elite participation is
necessary because of the technical skills required in drafting and
compromises that need to be made by the major stakeholders, the debates
and conflicts between political parties, organizations and leaders
should not and must not be allowed to dominate or overshadow the vital
need for mass public participation in the constitutional dialogue. In
the “Arab Spring”, civil society and grassroots organizations, women,
the youth, and other underrepresented groups have not been adequately
included in the formal dialogue and will likely not be involved in the
final negotiations and drafting of a new constitution. Is it not ironic
that the young Egyptians who sparked the revolution and sacrificed their
lives in overthrowing Mubarak now have so little voice in the drafting
of the new constitution?
There are other important lessons
Ethiopians can learn from the general experience of the “Arab Spring”.
Public civic education on a new constitution must be provided in the
transitional period. Ethiopian political parties, organizations,
leaders, scholars, human rights advocates and others should undertake a
systematic program of public education and mobilization for
democratization and transition to a genuine constitutional democracy.
They must initiate and lead broad and ongoing dialogue on the current
constitution, its advantages and disadvantages and present
constitutional alternatives for a new and genuinely democratic Ethiopia.
Political
polarization of society is a predictable outcome in a post-dictatorship
period. To overcome conflict and effect a peaceful transition,
competing factions must work together, which requires the development of
consensus on core values. The “Arab Spring” experience shows the
difficulty in developing consensus as they seem to be bogged down in all
sorts of divisive issues rooted in religion, identity, ethnicity and so
on. What should be the core values of a new democratic Ethiopia? How
does one transform subnational fragmentation and disintegration into
national cohesion and integration?
To have a successful transition
from dictatorship to constitutional democracy, Ethiopians need to
practice the arts of civil discourse and negotiations. As difficult and
embarrassing as it is to admit, many Ethiopian elites on all sides seem
to suffer from a culture of inflexibility and zero sum gamesmanship. In
other words, one has to win always, and the rest must always lose. We
have seen absurd zero sum games played over the past 21 years. In May
2010, the ruling party claimed it had won 99.6 percent of the
legislative seats! In 2008, the same ruling party claimed that in the
local and by-elections it had won all but four of 3.4 million contested
seats! A clean break from such zero sum culture and zero sum mentality
is needed. Such absurdity and rigidity is also the perfect breeding
ground for the re-emergence of a new dictatorship. It must be replaced
by a culture of tolerance, good will, civility and respect in national
dialogue.
One of the criticism aimed at the interim and
transitional governments in the “Arab Spring” countries is lack of
transparency in the constitution-making process. In Egypt, it seems
clear that regardless of any new constitution, the military is unlikely
to give up its control to civilian supremacy and risk losing its massive
economic holdings in real estate and the services sector. In a
transitional period, the public is often left in the dark about the
constitution drafting process process and transitional governments tend
to be somewhat secretive about their activities. In Libya, political
activists in major cities have held demonstrations demanding more
transparency in the transitional council’s decision-making process.
The
absence of transparency diminishes public confidence and increases
popular cynicism. Broad citizen engagement is one of the most effective
ways of maximizing transparency. Ethiopian political parties and
organizations, civic and grassroots organizations, advocacy groups and
the independent press could play a decisive role in promoting and
maintaining transparency in the constitutional dialogue and constitution
making process. They could play important roles in educating and
informing the public and by monitoring official activities to safeguard
against manipulation and underhandedness by those entrusted with
drafting the constitution.
Kenya’s Constitutional Model for Ethiopia?
Kenya’s
constitutional reform in the aftermath of the crises in the 2007-07
presidential elections has been praised by various international
organizations and governments. The Kenyans formed a “national unity”
government before embarking on a constitutional drafting process. Most
independent commentators have noted the inclusiveness and transparency
of the constitution drafting process, the extensive consultations among
stakeholders, the wide availability of constitutional civic education
and the high level of civic engagement. The new constitution adopted in
2010 makes significant changes by imposing constitutional limits on
executive power, replacement of powerful provincial governments with
smaller counties, a citizens’ Bill of Rights and a landcommission to
return stolen property and review past abuses, among others. The
Constitution was approved by 70 percent of the Kenyan electorate.
The Search of a Democratic Constitution and a Constitutional Democracy in Ethiopia
The
search for a democratic constitution and the goal of a constitutional
democracy in Ethiopia will be a circuitous, arduous and challenging
task. But it can be done! My views on the subject are pretty
straightforward: A constitution is the supreme law of the land, which
simply means that it is the fountainhead of all laws and all other laws
in the land are subordinate to it. A constitution is fundamentally a
limitation on government (not an empowerment of government). I think of
it as the people’s iron chain leash on the “government dog”. The shorter
the leash, the better and safter it is for the dog’s masters. A
constitution is also the sword that guarantees individual liberties and
human rights against abuse by those exercising power. Only when those
who are entrusted with the sacred duty of governance are put on a short
leash and guarded by an independent judiciary wielding the sword of
accountability will there be a true constitutional democracy in
Ethiopia.
Amharic translations of recent commentaries by the author may be found at:
http://www.ecadforum.com/Amharic/archives/category/al-mariam-amharic
http://ethioforum.org/?cat=24
Previous commentaries by the author are available at:
http://open.salon.com/blog/almariam/
www.huffingtonpost.com/alemayehu-g-mariam/
