Derege B. Demissie
Recent developments in the State of Somalia have stirred heated debate on Federalism, the limits of state power, and the intervention of the federal government to restore order. What took place in Jijiga provides fertile ground for a sober and productive discussion on federalism in general, and the federalism in the context of Ethiopia in particular.
First, until now, what we had in Ethiopia is federalism in name only. In other words, we did not have federalism in Ethiopia, period! From the outset, it is axiomatic that federalism cannot exist without democracy. The very concept of federalism requires that distinct states or regions within the nation are able to govern themselves in all areas not reserved for the central government. The idea is based on the principle that people who live in various administrative states should be able to govern themselves however they see fit within the ambit of the national constitution. This principle presumes that the people of the various states will be able to elect their own state government and legislature. It presumes that the people will have a say in shaping and enacting the local laws that govern their affairs.
For the past three decades, the central government in Ethiopia dictated who controlled the states. Indeed, the states were all administered by parties that were part of the ruling EPRDF party. In the rare instance where this is not the case, the leaders of EPRDF would directly control which party and personality would rule over a state. The Somali region was governed by such an arrangement. The client rulers who govern the states were ultimately accountable to the ruling party as opposed to the residents of their state. There has never been a free and fair election within any of the states to elect the leaders by universal suffrage. Sure, the states enacted laws that protect and promote the local culture, language and customs. But that’s not what makes the system federal. The existence of a true federal system depends on the ability of the the people to choose their own state governors and the laws they are governed by.
Federalism comes with strict limits on the power of the regional states. In a federal system, the states are free to create laws in all areas not reserved to the central government. The core principle of a single political union requires the supremacy of the central government and the constitution of the union.
Although most federal constitutions differ in what they allow regional states to control, the common areas reserved to the central government in federal systems are the national defense and interstate commerce. That is not to say the federal government cannot dictate what states should and should not do in areas not reserved for the federal government. It just means it uses soft power to compel conformity. For example, regional states are usually allowed to form their own regulation in regards to education. But in many federal systems, the central government sets general guidelines and minimum standards. Regional states that ignore these standards may do so at their peril as their graduates would not receive national accreditation or federal funding for schools may be contingent on their compliance. In such areas, the central government uses the power of its purse and accreditation to coerce states to conform to national policy. So even in areas not reserved to the central government, regional states may be forced to behave in conformity with policies established by the central government.
When the states violate the federal constitution and rights of citizens under the constitution, however, the federal government has the right and the obligation to step in. This is also mandated by the Ethiopian constitution. Indeed, the first of the 21 enumerated powers of the federal government in the Ethiopian Constitution is the power “to protect and defend the Constitution.” The notion that a state government can engage in a blatant violation of the constitutional rights of citizens and remain immune from federal intervention fails to recognize the basic principle that undergirds the federal system. While regional states can give their citizens more protection than the federal constitution provides, they cannot give less. When they do, they violate the federal constitution.
The folly of those who criticized the response of the federal government in intervening in Jijiga seems to stem from confusing Federalism with anarchy. Federalism is not anarchy. The federal constitution is the supreme law of the land. A state government cannot encourage the killing of innocent people based on ethnicity or permit the destruction of places of worship. In such instances, the federal government must take measures to protect and defend the constitution. The federal government has the duty to bring state officials who violate constitutional rights of citizens to justice.
Enforcing federal laws and suppression of mass violence which states are unwilling or unable to control have been the primary reasons for federal military intervention in prominent federal governments. In the United States, for example, the premier federal system of our time, the federal government had intervened militarily in various states to enforce the federal laws. When the Arkansas governor used the Arkansas national guard to block nine black students from entering a white only school, refusing to abide by the decision of the U.S Supreme Court, on Sept. 23, 1957, President Dwight Eisenhower sent the Army’s 101st Airborne Division to maintain order and peace and enforce the federal law.
In 1963, when the governor of the State of Alabama, Gov. George Wallace, tried to prevent the integration of a white-only school in defiance of the decision of the U.S. federal district court in Alabama that ordered the University of Alabama to admit two African-American students, President Kennedy also federalized Alabama’s national guard and enforced the law.
When riot in Detroit left 43 people dead and several properties damaged, on July 23, 1967, the federal government sent thousands of Army troops and National Guardsmen to bring order to the city. These are but some of the many examples of federal interventions in states by the United States military. All of these acts are viewed as necessary measures taken by the central government to restore order and enforce the constitution: The supreme law of the land.
Nor is the arrest and prosecution of state governors and legislatures for violation of federal law an uncommon phenomenon in a federal system. My quick research on this issue revealed that at least 11 state governors were charged and convicted of various federal crimes in the United States. I have also identified at least 89 prosecution of state legislatures by the federal government.
The same has been true for the Canadian federal system. During the Winnipeg General Strike in the summer of 1919, general chaos brought the city to a standstill. The local police allowed the disorder because they, too, supported the strike. The Federal government responded by sending in the military to restore order. The action was based on the doctrine that justified federal intervention in local and provincial matters when that matter had attained “such dimension as to effect the body politic of the Dominion.”
The Ethiopian Constitution, despite what some commentators expressed in various media, does not provide a blanket immunity from prosecution to state officials. To the extent the state official is a member of the House of People’s Representative, the official enjoys conditional immunity. Number 6 of the Article 54 of the Constitution states “No member of the House may be arrested or prosecuted without the permission of the House except in the case of flagrante delicto.” Flagrante delicto is a legal maxim that refers to highly visible, brazen action, as in getting caught in the act of committing an offense. The killing of civilians by state supported militia or special forces and the burning of Churches qualifies as Flagrante delicto. Plainly put, there is no one immune from prosecution for instigating the rampant killing of civilians.
The sad episode in Jijiga, as disastrous as it was for many individuals who lost their lives and religious institutions that came under attack, provides a good opportunity for a healthy dialogue and amplifies the need to establish a strong federal court system in Ethiopia. With increased democratic rights and freedoms, there will be increasing demands of accountability and transparency by the people of each state. There will also be a free flaw of information as well as misinformation. Democracy is messy. The only proven institution that can bring order the democracy’s mess is a truly independent judiciary. That is where we need to spend out energy.
This will not be the first incident of abdication of the duty by state officials to protect the equal rights of people within their administrative region. The system needs to develop a legal framework that allows the government to intervene early and avoid the necessity of resorting to a military.
The federal government should use the federal court system to bring lawsuits, secure injunctions, and, if necessary, arrest warrants against state government officials who engage in systemic violation of the federal constitutional rights of citizens. To do that, the federal government must have federal police in the various states to assist the federal courts in enforcing its orders and secure the appearance of witnesses and defendants. Indeed, the first step and preferred method of intervention in every such dispute should be a court action, whether its civil or criminal.
Building a strong, independent court system would allow the federal government to send a message to state officials who abuse their position as well as leaders of vigilante mobs that terrorize people based on their ethic background. Whether one is an Amhara in Harar, a Tigray in Hawassa, or an Oromo in Mekelle, that person should be protected to enjoy all of her constitutional rights without interference by a rogue state official or a vigilante mob. The federal government should use the courts to send a message of deterrence to those who violate the constitutional rights of citizens. Those arrested in Jijiga as well as individuals who engage in violent acts against civilians based on their ethnic background should be charged and brought to justice in open, fair, and public trials. Let’s use the courts not only to deliver justice but also educate the public.
Finally, many have argued the country cannot maintain national unity with ethnic-based federalism. That the existing constitution was designed to undermine Ethiopian nationalism and unity. As such, they conclude, we cannot move forward without a new constitution and new federal system. While these concerns are valid and merit full consideration, I believe the time is not ripe to engage in wholesale constitutional change. Building democratic culture, democratic institutions, and a strong and independent judicial system should precede any effort to draft a new constitution. We will repeat the mistakes of the past if we rush to engage in a process that is sure to produce clear losers and winners. We should first reform the system enough to get us to a point where we can engage in a productive and democratic dialogue on how we can live together in harmony. Then we can begin the discussion on whether to shed ethnic-based federalism for a multi-ethnic state federalism. We’re just not there yet.
