By Haleka Barud
Who has the constitutional authority to establish an Interim Regional Administration in Tigray Regional State, within the framework of the Pretoria Peace Agreement and the Nairobi Declaration?
How and when could it be established, within the framework of the Pretoria Peace Agreement and the Nairobi Declaration?
The purpose of this note is to raise some important constitutional questions and provide preliminary comments and remarks rather than offering complete constitutional answers.
The Pretoria peace agreement clearly stipulates that the establishment of an Inclusive Interim Regional State Administration in Tigray Regional State shall be settled by the Executive branch of the federal government and the TPLF, within a week after the de-proscription of the TPLF by the federal Parliament.
Legally and contractually speaking, therefore, the political dialogue for the establishment of the Tigray Regional State Interim Administration between the federal executive and the TPLF cannot begin before the revocation of the TPLF as a terrorist organization by the federal Parliament. The political dialogue can only be commenced within a week after the revocation of the designation of the TPLF as a Terrorist organization.
Given these conditions, it is incumbent upon the TPLF to press the federal executive to facilitate the lifting of its designation as a Terrorist organization by the Parliament with immediate effect, before asking the federal executive to start the political dialogue.
Secondly, the executive branch of the federal government and the TPLF do not have the authority to establish an Interim Administration in Tigray Regional State by a mere political agreement, action or decision, as per the peace agreements, the supreme law of the land and other federal laws. That is to say:
Neither the federal executive nor the TPLF have any authority to set up the Tigray (Regional) State Interim Administration, without the involvement of either the federal Parliament or the House of Federation, as the case maybe, other things remaining constant.
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Thus, it seems that the executive branch of the federal government and the TPLF do not have the mandate – be it under the Constitution or under the peace agreement – to establish an interim regional administration in Tigray regional State, merely by a political action or decision, without the involvement of either the federal Parliament or the House of Federation.
Who else, then, shall establish an inclusive interim regional State administration in Tigray State, by converting the results of political dialogue into law or a lawful order under the federal Constitution; if the parties to the peace agreement agreed on the establishment of an interim administration through political dialogue?
It could be argued that the interim administration in Tigray Regional State should be established either by the House of People’s Representatives, through State of Emergency, or by the House of Federation, by way of Federal Intervention Order, in accordance with sub-article (9) of article 62 of the FDRE Constitution and System for the Intervention of the Federal Government in the Regions Proclamation No. 359/2003.
But one must carefully examine and inquire whether or to what extent circumstances exist that warrant the Declaration of a State of emergency in Tigray regional State under the present conditions, according to the FDRE Constitution – and whether there are constitutional and legal grounds for the HoF to order federal intervention in Tigray Regional State under the present circumstances, before arguing one way or another.
For instance, shall an Interim Regional State Administration in Tigray Regional State be established by the House of People’s Representatives by passing a State of Emergency proclamation, in accordance with article 93 of the FDRE Constitution?
State of emergency is governed by the provisions of Article 93 of the FDRE constitution. The Ethiopian constitution authorises the Council of Ministers to decree a state of emergency, which allows the government to suspend basic rights and freedoms, under very specific conditions. Accordingly, the only situations when a state of emergency can be declared are: a) war; b) breakdown of law and order that threatens the constitutional order; c) epidemic; or d) natural disaster.
The basic condition that must be met before the imposition of such an emergency is the existence of a situation amounting to “a breakdown of law and order which endangers the Constitutional order and which cannot be controlled by the regular law enforcement agencies”. At present, however, it seems that there are no constitutional emergency grounds that warrant the declaration of a state of emergency in Tigray regional state.
Despite the region facing challenges of hitherto unprecedented magnitude and nature, the current situation in Tigray regional state does not meet the very high threshold required by the FDRE Constitution for the imposition of a state of emergency in the Region’s territory. In other words, grave though the political situation in the region may be, there is no imminent threat to the vital interests of the state that would legitimise the declaration of a state of emergency under the FDRE Constitution.
If the federal government sets up an interim regional administration in Tigray Regional State through State of Emergency – as the Italian political theorist Georgia Agamben explains in his 2005 book, A State of Exception – an emergency of this kind would be a sort of “legal civil war that allows for the physical elimination not only of political adversaries but of entire categories of citizens who for some reason cannot be integrated into the political system”.
Secondly, shall it be created by the decision of the House of Federation, in accordance with sub-article (9) of article 62 and Federal Proclamation No. 359/2002? The House of Federation shall have the power to order federal intervention, only if any regional state, in violation of the federal Constitution, endangers the constitutional order. However, there are no such conditions in Tigray regional state at present. On this basis, the House of Federation cannot order the federal intervention in Tigray regional state, in the absence of the necessary conditions under the supreme law of the land.
In addition to the Constitution, System for the Intervention of the Federal Government in the Regions Proclamation No. 359/2003, under its article 12, provides additional grounds for ordering federal intervention by the House of Federation in principle. But since there are no such additional grounds in Tigray regional state at the present moment. The House of Federation cannot order federal intervention in Tigray Regional State, in the absence of the necessary conditions under the proclamation.
Thirdly, could it be instituted by way of an extra-constitutional approach – if both parties agreed that there is no clear constitutional solution to the specific matter at hand? If the parliament cannot pass an emergency proclamation, and if the House of Federation cannot order federal intervention into Tigray state at the present moment, one of the options left is an extra-constitutional approach.
However, what if its establishment in Tigray State – in form and in substance – could not be settled through political dialogue between the executive organ of the federal government and the TPLF? Should such a situation arise, could the federal government establish an Interim Regional Administration in Tigray, without the involvement or agreement of the TPLF, as per the Pretoria and Nairobi agreements?
Furthermore, what would happen if the federal Parliament or the House of Federation rejected the results of the political dialogue – even if the parties to the Agreement have agreed on the establishment of an Interim Administration through political dialogue? Since the peace agreement has not been endorsed by Parliament, it cannot bind the federal Parliament. Note that neither the Pretoria Peace Agreement nor the Nairobi Declaration have been approved by the federal Parliament.
Consequently, the federal Parliament might say that it would not pass an emergency proclamation, based on the results of the political dialogue between the parties to the agreement. The House of Federation also might reject ordering federal intervention in Tigray state, based on the results of the political dialogue between the parties to the agreement.
Neither the federal government nor the TPLF could cause the establishment of an Interim Regional Administration in Tigray Regional State, without the involvement and agreement of other contracting parties to the peace agreement, as per the Pretoria and Nairobi peace agreements.
Both federal intervention and emergency proclamation could not be carried out, solely based on an agreement, in the absence of constitutional and legal mandatory requirements. If such a proclamation or order, respectively, was passed, based on an agreement between the contracting parties, the parties would compromise their constitutional mandates; de facto allowing interference into their authority under the Constitution.