Blog 5. Federalism and the Constitution by Prof. Alemente G. Selassie (2013)
Slightly more than two decades have passed since the TPLF enshrined ethnicity in the laws and constitution of the country as the foundation as well as the guiding principle of statecraft and inter- ethnic relations. The experience gained during this period of our political history is more than adequate for assessing the wisdom of structuring government on such an emotionally charged, divisive and unstable basis. It provides as well a window to the likely consequences of this form of governance on the future fate of our common citizenship (“Ethiopiawinnet”), inter-ethnic harmony, individual and minority rights, and the state’s ability to enforce the much-vaunted but often ignored dictates of the rule of law.
The recent expulsions of Ethiopians of Amhara heritage from Gura Ferda and Beni-Shangul, the confiscation of their properties and the crime of rape and other forms of victimization inflicted upon them, are not only a negation of the forgoing values but also unmistakable harbingers of worse forms of ethnic oppression, discrimination, and social conflict looming on the horizon. An unmistakable lesson of these experiences of mass atrocity is that the notion of an undifferentiated citizenship holds very little or no sway in the country any longer, thereby condemning ethnic minorities trapped in the wrong titular state to the tender mercies of the ethnic elites in control of these states and the connivance and manipulation of the ruling elites at the center. If citizens who do not belong to the “right” ethnic group can be endangered with impunity in this way merely on account of being “different” from the relevant majority, can it be long before the notion of a common citizenship gradually atrophies and becomes extinct?
Even if this particular result can somehow be avoided, the devolution of political power to ethnic majorities will always put at risk the security, status and rights of those who do not belong to the empowered regional majorities. If, the fundamental political constitutional issue in Ethiopia is how citizens of varying ethnic and cultural backgrounds can coexist harmoniously, the atrocities alluded to above highlight another sobering lesson: federalism, by itself, is not enough as a means for promoting ethnic harmony or for protecting individual rights. This is because the glorification of ethnic identity under the auspices of ethnic federalism is fundamentally and inherently incompatible with the notion of equal rights and a common citizenship. Consequently, the most important immediate political task for all Ethiopians should be to nourish a countrywide sense of identification and belonging and to tamp down the rhetoric and obsessive fascination with the so-called national question that continues to captivate and freeze otherwise intelligent minds. I do realize that this is indeed a tall order under the prevailing political circumstances. But if we are to avoid the two most tragic consequences of ethnic division and conflict- genocide and the break-up of the country- there is no other option but to come together in defense of Ethiopiawinnet and equal citizenship. The danger exposed by Gura Ferda and Beni-Shangul should serve as a wake-up call to action.
In the following pages, I will address four questions that the crimes committed against Amharas in Gura Ferda and Beni-Shangul raise. The first question concerns the ideology that motivates political ethnicity and its underlying aims. I will then briefly note the ways in which the ruling party in Ethiopia has entrenched these aims in the basic law of the country. This is followed up by a brief discussion highlighting the particular ways in which the constitutionalization of ethnicity objectively undermines Ethiopiawinnet and basic human rights as internationally recognized. In particular, these remarks will highlight how this constitutional formula is likely to lead to the most odious forms of human rights violations, namely, ethnic cleansing and genocide. I will conclude by pointing out that upholding Ethiopiawinnet holds the key for forestalling such tragedies and for maintaining social peace and stability, and for promoting democracy and human rights.
Political Ethnicity and Its Aims
Lurking behind the politicization of ethnic identity in Ethiopia is a pernicious ideology: the ideology of ethnic nationalism which the Ethiopian Student Movement, wittingly or unwittingly, popularized under the ill-conceived rubric of the “national question.” For many, this slogan signified nothing more than a demand for a policy of ethnic equality so as to exorcise the cultural milieu of ethnic mistrust and antagonism as well as to encourage ethnic groups to come together, as Lenin would have us believe – naively, as it turned out. But ethno-nationalist ideologues and politicians are rarely satisfied with ethnic equality per se; they demand much more.
Ethno-nationalism has three defining characteristics that reveal the chief aims of political ethnicity and the difficulty of bringing ethnic groups to come together when politicians use ethnicity as a source of political identity. As our own experience demonstrates, citizens who might not have been aware of their ethnicity regrouped under its banner as soon as the state deliberately used it as a source of identity. Thus the first characteristic of the ideology of ethnic nationalism is that nations are to be defined solely in ethnic terms, i.e., in terms of a common history, tradition, and a common language. Secondly, nations should have their own states, so that the nation as so defined and the state should be congruent with each other. Finally, the loyalty of members of a nation should override all other loyalties including loyalty to an overarching countrywide nationalism. Clearly, this notion of nationalism is at odds with the citizen nationalism which Ethiopiawinnet seeks to uphold. Ethiopiawinnet holds that all Ethiopians are part of the same nation irrespective of their ethnic background and are united by a patriotic attachment to a common country in which all enjoy equal rights.
But civic nationalism has to contend with the dangers inherent in the ideology that conceives ethnic groups as “nations.” The main danger inherent in ethno-nationalism is threefold: expansionism, exclusivism and secessionism. Expansionist ethnic nationalism threatens the territorial integrity of states and sub-states. In the case of Ethiopia, the most obvious example is the expansionism of the TPLF into Gondar and Wollo provinces in fulfillment of the Greater Tigray project.
Ethnic nationalism is also inherently exclusivist and gives rise to various forms of ethnic cleansing, as we have witnessed in Gura Ferda and Beni-Shangul. As one of the most virulent ethno-nationalists, Jawar Mohammed, has told us Ethiopians living in the so-called Oromia must leave the region or “else.” Some may naïvely dismiss or discount Jawar’s threat captured in YouTube as the outbursts of a callow young man. But that would be a mistake. It behooves us to remember that those whose ideology demands blind loyalty to their own community and its self-righteous claims of right, and those who glorify their own ethnic group to the denigration of others are often those who will have no qualms to engage in ethnic cleansing and genocide in the “name” and the “defense” of their ethnic group. Entranced by their ideology and a sense of a past victimization that is often rooted in half- truths and utter lies, they will have little or no compunction to deny the humanity of those whom they regard as the “Other.”
Dyed-in-the wool ethno-nationalists are secessionists to the core as well. The missionaries of ethnic federalism may indulge the belief that their chosen form of governance will satisfy the ethno- nationalists’ desire for self-government and thereby discourage secessionism. But this is a pious hope and a dangerous illusion. The devolution of political power to an ethnic majority is more often than not a political arrangement that risks fuelling the ambitions of nationalist leaders who will be satisfied with nothing short of their own nation-state. Examples of this abound: Nagorno-Karabakh in Azerbaijan, Abkhazian in Georgia, Chechnya in Russia, and the Serbian region of Bosnia- Herzegovina. We should not be surprised to see this trajectory replicated in Ethiopia in the future, making the country’s territorial integrity always provisional and contingent, its politics messy and unstable, and the rights of individuals belonging to ethnic minorities precarious.
Ethnicity and the EPRDF Constitution
The Ethiopian Constitution is in essence the expression and implementation of the TPLF’s ethno- nationalist ideology. What the constitution enshrines is not the idea of democracy as a polity of equal citizens, but rather of the creation of a national state for the local majority, ethnically defined. Article 8 unabashedly announces, “All sovereign power resides in the Nations, Nationalities and Peoples of Ethiopia” and goes on to provide that “This constitution is an expression of this sovereignty.”
Article 8 sounds the death knell of Ethiopia as a sovereign nation because it locates sovereignty not in all its citizens as a people acting in their individual capacities unimpeded by their particular ethnic affiliations but rather in the various ethnic communities that inhabit the country. In other words, by jettisoning the notion of popular sovereignty based on “We the people” in favor of ethnic group sovereignty, the constitution envisions a state in which each ethnic group (at least the major ones) is privileged to decide its own form of governance, identity, future association with the state, and the rights of Ethiopians subject to its jurisdiction.
In implementation of this vision, the constitution has divided the country into nine ethnic states with the principal aim of making each state as a vehicle for aggregating and expressing the political, cultural and linguistic identity of the country’s major ethnic groups. The animating idea behind this constitutional edifice is the desire to foster the emergence of ethnic groups as distinct polities, i.e. “nation states “of homogeneous ethnicity. Lest there be any lingering doubt about this intention, Article 39 dispels the doubt and undergirds this goal by proclaiming the unconditional of right of ethnic groups to secession. In addition, to forestall any attempt at revision of the Article, the Constitution ensures its continued effectiveness by requiring the consent of ALL states before any amendment to this provision can be attempted. This essentially means that every state, even the tiny state of Harari has veto power to thwart any revision. As far as I know, no democratic constitution has ever gone down this road and certainly not as far.
The Evils of Ethnic Constitutionalism
Instability is the antithesis of constitutionalism. A well-considered and legitimate constitution should provide a structure of political action, a set of institutions within which political conflict can be resolved through political processes that are accepted as legitimate by the citizenry. Moreover, such a constitution should contain effective guarantees for the protection of individual and minority rights.
Ethiopia’s constitution falls woefully short of these requirements. Far from providing a framework for resolving conflict and protecting minority rights, the constitution instead essentially mirrors the very configuration of ethnic conflict and division that it ostensibly seeks to resolve. Said differently, the constitution provides a framework for the polarization, not the moderation, of contesting ethnic elites and organized polities by devolving political power to majority ethnic groups and encouraging them to form political parties to represent their particularistic interests. At the present time, the TPLF, like the erstwhile Communist Party of the Soviet Union and the Communist League of Yugoslavia, seeks to maintain national unity through the tight control it maintains over its ethnic affiliates. The false sense of security that this political modus vivendi does seem to offer, however, belies the underlying reality of ill-will and resentment the party’s ethnic partners feel toward their overlords. It would be the height of naiveté’ to entertain the belief that the various ethnic-based political formations-–inside and outside government--(with a few possible exceptions) are committed to the current lopsided political arrangement which unquestionably serves and benefits the elites of one ethnic group.
It is to be expected, therefore, that the leaders of the subservient components of the federation are biding their time. They will raise their heads, assert themselves, and challenge the ruling power over some question of importance to the challenger when the circumstances appear propitious. This is likely to occur when the local government feels that it has substantial support among its “own” population to challenge action by the center as illegitimate or when it perceives that the center as no longer capable of enforcing its rule. The existence of independent ethnic governments will serve as a means for collating and articulating ethnic demands and grievances against the central government or to urge action toward gaining independent statehood. Under either scenario, what begins as a conflict of interest, over economic questions such as land ownership, for example, may be turned into a conflict of principle over the legitimacy of the federation itself, thus setting the stage for the breakdown of the federal state into a war among its components. Such is the kind of conflict the constitution at bottom configures but provides next to nothing to ensure political legitimacy and stability.
The TPLF constitution is configurative of ethnic conflict in another way and for that reason can never be a recipe for social peace or governmental stability. The sole rationale and impetus for the constitution is the right of ethnic majorities to self-determination each with its “own” territory and government. Ethnic constitutionalism is the hallmark of such a form of state: a constitutional and legal structure that privileges the members of the ethnically defined nation over the other residents of a particular state. It thus envisions government of one kind of people, by that kind of people, for that kind of people, whose sovereignty must be protected against perceived encroachments form all others. Such a system of government institutionalizes ethnic division between those who are members of the sovereign nation and those who are not. As our experience to date demonstrates, the chief motive for “national liberation” is not really to free oneself from domination or perceived domination but rather to acquire the means to dominate and mistreat others. Thus those who are relegated to minority status in an enclave state may be citizens of the country but may not aspire to equality. Under these circumstances, the very premise of the polity may be seen as an inversion of Affirmative Action as practiced in the United States: ethnic constitutionalism institutionalizes invidious discrimination and negative action against minorities, which the constitution has simply defined out of the body politic because they are not considered natives of the regions in which they reside. Constitutionally defining out a targeted population in this way is a serious matter especially where the target group has roots in the territory that go back generations, even centuries, because it deprives the excluded group of their fundamental rights to nondiscrimination and equality.
No group of people will willingly accept relegation to second-class status and exclusion. On the contrary, ethnic minorities (and their co-ethnics elsewhere) are more likely to be encouraged to oppose the majoritarian government which defines them as social and political outcasts and tyrannizes them. Moreover, ethnic constitutionalism necessarily gives rise to two very divergent and conflicting visions of citizenship: national and ethnic. As the experiences of Yugoslavia and the ex- Soviet Union have shown, however, rival citizenships of this kind are a prolific source of social conflict and can hardly coexist- at least not for a long time- in the same political space. These experiences suggest that ethnic minded individuals are far more willing to exchange their national citizenship for ethnic citizenship (recall Jawar’s outburst of “I am first an Oromo” on Al Jazeera) and are willing to kill or die for their ethnic group. Recall also that pride in and loyalty to the ethnic group are salient attributes of ethnic nationalism. The late Meles Zenawi captured this sentiment when he said to the country” I am proud to be born a Tigrayan, the Golden people of Ethiopia.” Furthermore, they illustrate that when the two kinds of nationalism compete, countrywide nationalism is likely to be the loser because it lacks the emotional force that ethnic citizenship can so easily muster. We all know from our own recent history that the struggle between these forms of citizenship has often resulted in disastrous civil wars, economic dislocations, and, more seriously, in ethnic cleansing.
Thus, from a human rights perspective ethnic constitutionalism is inherently problematic. Even leaving aside for a moment ethnic cleansing and genocide - ominous systemic risks which Gura Ferda and Beni-Shangul have exposed - ethnic constitutionalism is a negation of the various internationally recognized human rights the country has solemnly covenanted to uphold. To begin with, in so far as ethnic constitutionalism empowers a particular ethnic group to control a subunit of the federation, such a group will invariably frame and enforce rules and practices calculated to privilege its members and to subordinate so-called outsiders. Such discrimination violates, for example, the International Covenant on the Elimination of All Forms of Racial Discrimination, which specifically outlaws” any distinction, exclusion, restriction or preference based on ... ethnic origin which has the purpose or effect of nullifying or impairing... the enjoyment or exercise, on equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” Ditto for Article 25 of the Ethiopian Constitution. Notwithstanding these provisions, ethnic discrimination is a daily dirge heard among wide sections of Ethiopian society. Space does not allow me to go into this point in greater detail. Suffice it point out that recruitment to the civil service, the police and other branches of the government is disproportionately from either the ethnic group controlling the center or the ethnic groups that control the sub-states.
Ethnic constitutionalism also violates the guarantee of equal rights to political participation as mandated by international human rights law. The International Covenant on Civil and Political Rights, for example, recognizes the right of every citizen to “take part in the conduct of public affairs”, the right to vote and be elected in periodic elections, and the “right to have access on general terms of equality, to public service in his country.” Yet, ethnic federalism nullifies these guarantees. In the State of Beni-Shangul- Gumuz, for example, a proclamation passed in 2007 has allocated 55% of the seats of city councils in the state to ethnic groups considered indigenous (i.e., Gumuz, Shinasha, Komo and Mao). The rest of the population of the state are considered outsiders and second-class citizens even though they together constitute more than 40 % of the state’s population. Similarly, in the state of Oromia another proclamation provides that in the so-called First and Second Class Cities, if the number of Oromos residing in these cities are fewer in number than the rest of the resident population, then 50% of the Council seats will be reserved for them along with an additional 20% for Oromos living in the surrounding rural areas. Under both these laws, Ethiopian citizens who are considered non-native to these areas are purposely relegated to minority status.
In the face of such discrimination and exclusion, it is no wonder that citizens are reluctant to exercise their right under international human rights law to move freely in the country and reside wherever they choose to. To be sure the Ethiopian constitution guarantees this right as well but its practical implementation is another matter altogether. Because employment opportunities, political power, rights of political participation and access to economic and business opportunities all depend on belonging to the “right” ethnic group, those that do not belong have no incentive to move into regions controlled by such group, especially now when the political atmosphere has been polluted by ethnic cleansing.
More worrisome violations of the foregoing rights are the impending danger of ethnic cleansing and genocide. This is no exaggeration. Consider: If ethnic cleansing is already here, can genocide be far behind? My fear is that it cannot be. I base this fear on the simple logic of the ethnic fundamentalist ideology the Ethiopian constitution has embraced. As noted, the driving ideology of ethnic nationalism is rooted in the notion of ethnic homogeneity, which inevitably leads to feelings of separateness and a sense of exclusive ownership of a particular homeland. Ethnic nationalists have two means to accomplish ethnic homogeneity and ensure that the ethnic homeland remains in the hands of sons of the soil: ethnic cleansing and genocide. The first has raised its ugly head several times already in several regions of the country. If allowed to take its natural course this evil is likely to escalate and lead sooner or later to a campaign of genocide. Drawing ethnic boundaries on mixed populations as has been done in Ethiopia is often a recipe for the commission of such crimes. The break- up of a common state is the other major circumstance which often leads to the same result. This is a risk that we can ignore at our own peril.
What to do?
What must Ethiopians who care about the welfare of their compatriots and the unity of their country do to reverse the political tendencies that encourage these evils? Figuring out the answer to this question is the hardest part. Nonetheless, let me offer a few thoughts in this vein. I believe that the first and most important lesson we can glean from our political history of the past 40 years is to recognize the wrong-headed and flawed manner in which the so-called “national question” was formulated and propounded. Many of us considered this foreign-inspired formula as the panacea for our problems of ethnic inequality without ever bothering to undertake seriously a sober study of our own history and political situation. Unlike the ex-Soviet Union and Yugoslavia which were a patchwork of previously independent national communities, Ethiopia’s historical trajectory was one of organic growth around a common nucleus. We all know that before the Woyane came to power, there was no notion of an Amhara or Oromo community each with its own defined region. Contrast that with Ukraine, Georgia or Russia with their defined boundaries even in Czarist times. It is the failure to appreciate this crucial distinction that has led us to repeat the canard that “nations, nationalities and peoples” have the right to secession. But does the seceding unit have title to the territory it seeks to take with it? Has the population that now inhabits a specific territory always controlled such territory? Raising these questions is enough to indicate the answer: we must reverse course and cleanse our politics of ethno-nationalist debris.
A related mistake concerns the fact that little or no thought was given to the need to preserve Ethiopia and Ethiopiawinnet. To the contrary, the task of defending the danger facing these values was left to the government of the day, both in the imperial period as well as under the military regime. Those faint voices which raised concerns regarding the negative consequences of overemphasizing the national question to the detriment of the unity of the country were castigated as “chauvinists” and “neftegnas.” The ruling government and some ethno-nationalists in the camp of the opposition continue to find these labels serviceable even to this day. Sadly the overwhelming majority of us was cowed -- and continues to be so today--by these epithets and proved to be bystanders as the country hurtled down a dangerous path of national destruction.
It is essential that we rectified this mistake and repaired the damage by standing up forcefully for Ethiopia’s survival as a country and the right of all our people to live and work anywhere in the country and to be treated as equal citizens under law. We can do that only when we come together by bridging minor political and personal differences and when we no longer allow ethnic movements to dominate the country’s politics. After all, the two main social problems of the country – an inequitable land tenure system and ethnic inequality – which might have served to justify the ethnic movements of the 1970s and 1980s do no longer justify ethnic separatism. Whether they do or not, however, the most urgent and central task of all who believe in Ethiopiawinnet is the need to build a powerful constituency to uphold the rights of Ethiopia as a country and the equal treatment of its citizens. Unlike in the past, this task cannot be left to the government of the day. This is what makes the task doubly urgent and overwhelming.
It is also important to recognize that all the talk by all and sundry- individuals and political parties alike- about democracy, human rights and the rule of law is empty sloganeering unless Ethiopia and Ethiopiawinnet are preserved. Indeed a major precondition on the road to the realization of these values is national unity and territorial integrity. This point is so basic and so obvious it needs little or no elaboration.
Finally, it must be pointed out that Ethiopia and Ethiopiawinnet are unlikely to endure so long as the constitution, which is the source of many of the problems briefly identified, is either scrapped or greatly revised to do away with the pernicious notion of ethnic homelands. This is not the place to go into the details of constitution-making or revising. One idea that must occupy a prominent place in such an effort, however, would be to guarantee that all inhabitants of a region, however defined, shall be entitled to all the privileges and rights enumerated in the constitution on an equal and non- discriminatory basis.
The author is Professor Emeritus of Law at the College of William & Mary in Williamsburg, VA (USA). This blog is an abridged version of a presentation on the same subject that was given on July 4, 2013 at the public forum organized by Ethiopiawinnet in Washington, DC (USA).