Fri. May 20th, 2022

article 39 practice in somali regionThe explicit constitutional recognition of the right of nations, nationalities, and peoples to secession is one of the highly debated politico-legal issues in Ethiopia. Election times, in particular, are good reminders of the debates surrounding the explicit recognition of secession in the Ethiopian constitution. The opinions of academics and politicians, on the matter, are highly divergent and most of them have tenable reasons to support their premises. They all seem to have reached a consensus on one crucial thing though. The arguments both against and in favor of the explicit recognition of the right to secession tend to unhesitatingly assume that the 1995 Ethiopian constitution allows for a unilateral right to secession of the member states. This piece disputes this bold assumption.

Article 39 of the constitution recognizes an unconditional right to self-determination including the right to secession. There is little substantive requirement as a precondition for the exercise of this right. The requirements as provided under Art. 39 are: (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 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. The constitution at a glance, therefore, seems to adopt a more lenient preconditions to the exercise of the right to self-determination including secession even compared to Article 2 of the 1991 Transitional Period Charter which says every nation, nationality, or people has the right to independence if it’s denied its rights such as the right to self-administration, equal participation, and promotion of identity, culture, and history.

On the other hand, the supremacy of the constitution is explicitly stated under article 9. Among others, no decision of a government organ shall contradict the constitution. The constitution further states that the territory of the federation constitutes the territories of the constituent units (Art. 2). Article 47 lists member states of the federation. It’s obvious that secession requires the existence of a decision of a government organ such as the concerned council. The decision can’t contradict the constitution, in this case article 2 and article 47, as the constitution is supreme. It’s also obvious that a member state’s decision to secede from the federation entails a constitutional amendment. Amending articles 2 and 47 is the only way to legalize a decision for secession.

Two types of procedures of constitutional amendment are provided in the Ethiopian constitution; one that is relatively demanding and the other relatively easier. As per Article 105, all rights and freedoms specified in Chapter Three of the Constitution, Article 105, and Article 104 can be amended only: (a) When all State Councils, by a majority vote, approve the proposed amendment; (b) When the House of Peoples’ Representatives, by a two- thirds majority vote, approves the proposed amendment; and (c) When the House of the Federation, by a two-thirds majority vote, approves the proposed amendment. The right to self-determination falls under the third chapter of the constitution but the provisions to be amended as a result of the exercise of the right to self-determination including secession will be articles 2 and 47 which are out of the provisions listed under article 105 (1). Hence, amendments in relation to articles 2 and 47 shall be conducted as per the procedures stated under sub-article 2 of Article 105 of

the constitution. As per Sub-article 2, all provisions of the Constitution other than those specified in sub-Article 1 of Article 105 can be amended only: (a) When the House of Peoples’ Representatives and the House of the Federation, in a joint session, approve a proposed amendment by a two-thirds majority vote; and (b) When two-thirds of the Councils of the member States of the Federation approve the proposed amendment by majority votes.

Therefore, it can be concluded that since a decision to secede entails a constitutional amendment, the other states and the federal houses have a say on such a decision. This will finally constrain the practical implementation of the right to self-determination including and up to secession since it can be assumed that it would not be in the interest of the other states to allow it. This can’t guarantee against secession provided that there is oppression but legally speaking unilateral secession doesn’t seem the option provided in the constitution despite the fact that many people think so. We went this far for the sake of exhausting the arguments.

Otherwise, if the argument that the other states and the federal houses have a say on anything that results in tampering with any of the constitutional provisions is tenable, a proposal for amendment inspired by the decision of a member state to secede from the federation will have a less probability of fulfilling the requirements provided under article 104 of the constitution. As per this article, any proposal for constitutional amendment, in order to qualify for a discussion by the concerned general public and a decision by the concerned organs, it should be, at least, supported by two-thirds majority vote in the House of Peoples’ Representatives, or by a two-thirds majority vote in the House of the Federation or by one-third of the State Councils of the member States of the federation, by a majority vote.

The argument of the supreme court of Canada in its decision on Quebec’s demand for secession seems to follow the above path. Though many academics criticize the decision of the court for being ambiguous, it explicitly recognizes the right to secession of Quebec particularly under international law but with a qualification that it can’t do it unilaterally under the Canadian constitution. This, as per the decision of the court, is because of the stake of the other Canadians in anything that affects the Canadian constitution. There are other important things that demand negotiation between the would be independent state and the parent state such as division of property and debts. The Ethiopian constitution has addressed this issue under article 39 and, hence, it’s not an issue for debate here though the decision of the Canadian Supreme Court may inspire us to do so.

There is one “lucky” constituent unit that escaped the procedural hurdles of secession in the Ethiopian case; Eritrea. For the time being, I am not going to dwell on political debates like whether a transitional government can engage in such adventures as allowing a constitute unit to secede, as many academics would like to do, since Article 8 of the Transitional Period Charter of Ethiopia empowers the transitional government to exercise all legal and political responsibilities representing Ethiopia. Neither will I deal with the role of force in the case of the secession of Eritrea. I am interested in presenting the legal aspect of the argument only. As discussed earlier, the Transitional Period Charter recognizes every nation, nationality, and people’s right to independence provided that they are denied the right to administer themselves or to develop their culture, or to promote their identity and the like. It can be debated whether these requirements can apply retroactively. But, presumably and from legal point of view, Eritrea seceded from Ethiopia because of the violations of its rights as provided under article 2. Apart from the requirements under article 2 sub-articles (a) and (b) which are vague and unqualified, there

was nothing that can stop Eritrea from seceding from Ethiopia. The Charter doesn’t talk about the territory or the constituent units of Ethiopia. Neither does it include a provision that talks about amendment that surely would have given a stake to the other constitute units as manifested in all federal constitutions including the current Ethiopian constitution. To put in the context of the current political and constitutional implementation, the political identity metamorphose of Somalis in Ethiopia is very important. It has to be analyzed in the development of identity versus nationalism in the last twenty three years.

Additionally, the majority of Somalis in Ethiopia wanted to be part of Ethiopia that exercise good governance, take part in free and fair political participation and integrate Somali Region in growth economic betterment except a few elements that are backed by external forces such as Shabya, Egypt and Somalia. A case in point is ONLF that is not representing Somali people of that region, but being a few myopic and left over of clan hegemony ideology at the time of ex-regime of Somalia. They wanted to have their own state, but they do not represent the majority of Somalis inhabiting in that region. It is very ironic to see the people who lost the power in Somalia such as the chairman of ONLF admiral Mohamed Osman to change their shirt and pretend to fight for liberation of Somali Region and EPRDF dealing with them. For example, to worsen the matter, these days these elements namely ONLF, the official of Somali region and some clan affiliated ex-regime of Somalia in Diaspora are celebrating Ginbot in Canada, England and America.

To complicate the existence matter combining inherited border legacy, ONLF has fooled EPRDF to fight them in Somali Region, in Somalia and in Kenya. EPRDF is confusing the issue not to apply Ethiopian constitution to solve Somali intractable problems, but they follow the associate approach “Aggar” within check and verification commanding style of its ideology. In other words, it seems EPRDF prefers to practice distorted “Aggar” political approach to finding a lasting solution in the region in terms of leadership, good governance, democratic system and sustainable development.

EPRDF has to work out how to fine tune the implementation of its classical constitution formulated in 1995 so that they share the power with other regions such as Somalis, Gambelas, Afar and Benshegul. The political approach of “Aggar” associate will not help to create a stable and peaceful Ethiopia in the long run; in the current format of power distribution between the federal and regional state governments, the late Dr. Abdulmajid Hussein will not have been Prime Minister of Ethiopia; consequently, Ethiopia will never see a Somali, Gambela, Afar and Benshegul PM unless one has to be the member of EPRDF. This will negate the prime vehicle of the constitution that has been dubbed as an ethnic and linguistic federal system comparing to the type of federal system of US and other countries assimilating the minority.

As a conclusion, the bold assumption that the Ethiopian constitution allows for a unilateral secession of its member states and, hence, it’s self-destructive is wrong. The Ethiopian constitution can be amended and through the procedures listed under article 39 and through amendment a member state can integrate in the EPRDF, but that does not amount to self-destruction. It’s also imperative to emphasize that the Eritrean case’s precedent is not compatible with the present constitutional realities of Ethiopia. The secessionist mentality will be altered if and if only nations and nationalities integrate in the overall system and not to be alien to the power distribution at the federal level. Then, the chapter of ONLF and other extreme spectrum of unitary state will be closed and Ethiopia will be ushered to prosperity, free and fair participation, and rule of law.


By Rasaas