Constitutional Checks and Balances - II By G. E. Gorfu _____________________________________________________________________________________
1.
The House has the power to interpret the Constitution.
2.
It shall organize the Council of Constitutional Inquiry.
3.
It shall, in accordance with the Constitution, decide on issues
relating to the rights of Nations, Nationalities and Peoples to
self-determination, including the right to secession.
4.
It shall promote the equality of the Peoples of Ethiopia enshrined
in the Constitution and promote and consolidate their unity based on
their mutual consent. 5.
It shall exercise the powers concurrently entrusted to it and to the
House of Peoples’ Representatives. 6.
It shall strive to find solutions to disputes or misunderstandings
that may arise between States. 7.
It shall determine the division of revenues derived from joint
Federal and State tax sources and the subsidies that the Federal
Government may provide to the States. 8.
It shall determine civil matters, which require the enactment of
laws by the House of Peoples’ Representatives.
9.
It shall order Federal intervention if any State, in violation of
this Constitution, endangers the constitutional order.
10.
It shall establish permanent and ad-hoc committees. (1) Hardly does one find an article that states: ‘The House shall not…’ or ‘The Executive shall not…’ either here or in the rest of the constitution, directly or indirectly limiting, curtailing, and tying the hands of those who exercise power. This is where the failure is: By not clearly defining the limitations of those who exercise power, a serious vulnerability has been put in place, exposing the Ethiopian People to all kinds of abuses of power. Now, for comparison, let us read article 1, sections 9 and 10 of the US constitution: Section
9.
The migration or importation of such persons as any of the states
now existing shall think proper to admit, shall not be prohibited
by the Congress prior to the year one thousand eight hundred and
eight, but a tax or duty may be imposed on such importation, not
exceeding ten dollars for each person. The
privilege of the writ of habeas corpus shall not be
suspended, unless when in cases of rebellion or invasion the
public safety may require it. No
bill of attainder or ex post facto Law shall be
passed. No
capitation, or other direct, tax shall be laid, unless in proportion
to the census or enumeration herein before directed to be
taken No tax or duty shall be laid on articles exported from any state. No
preference shall be given by any regulation of commerce or revenue
to the ports of one state over those of another: nor shall vessels
bound to, or from, one state, be obliged to enter, clear or pay
duties in another. No
money shall be drawn from the treasury, but in consequence of
appropriations made by law; and a regular statement and account of
receipts and expenditures of all public money shall be published
from time to time. No
title of nobility shall be granted by the United States: and no
person holding any office of profit or trust under them, shall,
without the consent of the Congress, accept of any present,
emolument, office, or title, of any kind whatever, from any king,
prince, or foreign state. Section
10.
No state shall enter into any treaty, alliance, or confederation;
grant letters of marquee and reprisal; coin money; emit bills of
credit; make anything but gold
and silver coin a tender in payment of debts; pass any bill of
attainder, ex post facto law, or law impairing the obligation of
contracts, or grant any title of nobility. No
state shall, without the consent of the Congress, lay any imposts or
duties on imports or exports, except what may be absolutely
necessary for executing it's inspection laws: and the net produce of
all duties and imposts, laid by any state on imports or exports,
shall be for the use of the treasury of the United States; and all
such laws shall be subject to the revision and control of the
Congress. No state shall, without the consent of Congress, lay any duty of tonnage, keep troops, or ships of war in time of peace, enter into any agreement or compact with another state, or with a foreign power, or engage in war, unless actually invaded, or in such imminent danger as will not admit of delay. (2) These
sections are known as Limits on Legislative Power and Limits on
States, respectively. Every line begins with the word: No. Where
that is not the case, we have underlined the negative emphasis. Even
the very first quote given in Part One, which states: "...no money
can be paid out of the Treasury unless appropriated by an act of
Congress…" is given above, restated somewhat differently. We can now
see the clear force and emphasis of these negative rules and
clauses. The negative “…no money can be paid out…” is what restricts
the hand of anyone who might want to do just that. It is
specifically stated and spelled out that it is against the
constitution to do that. One would be breaking a law if one does
that. The
same negative emphasis can also be found in the following five
amendments to the constitution: Amendment
I
Congress
shall make no law
respecting an establishment of religion, or prohibiting the free
exercise thereof; or abridging the freedom of speech, or of the
press; or the right of the people peaceably to assemble, and to
petition the government for a redress of grievances.
Amendment
II
A
well-regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms,
shall not be infringed. Amendment
III
No
soldier shall, in time of peace be quartered in any house, without
the consent of the owner, nor in time of war, but in a manner to be
prescribed by law. Amendment
IV
The
right of the people
to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures, shall not be violated,
and no warrants shall issue, but upon probable cause, supported by
oath or affirmation, and particularly describing the place to be
searched, and the persons or things to be seized.
Amendment
V
No
person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a grand jury, except
in cases arising in the land or naval forces, or in the militia,
when in actual service in time of war or public danger; nor shall
any person be subject for the same offense twice be put in jeopardy
of life or limb; nor be compelled in any criminal case to be a
witness against himself, nor be deprived of life, liberty, or
property, without due process of law; nor shall private property be
taken for public use, without just compensation. (3) Again,
we have underlined the clauses with the negative emphasis to show
the restrictions and limitations of those who exercise power. Where
we have not underlined, the sentence can be seen to begin with the
word: “No”. These negative clauses, by restricting and literally
tying the hands of those in power, protect the rights of the people
against potential abuse. For a final comparison, let us now look at
the Ethiopian Constitution, where the powers of the Executive have
been defined and listed. Article 74
Powers and Functions of the
Prime Minister 1.
The
Prime Minister is the Chief Executive, the Chairman of the Council
of Ministers, and the Commander-in-Chief of the national armed
forces. 2.
The
Prime Minister shall submit for approval to the House of Peoples’
Representatives nominees for ministerial posts from among members of
the two Houses or from among persons who are not members of either
House and possess the required qualifications. 3.
He
shall follow up and ensure the implementation of laws, policies,
directives and other decisions adopted by the House of Peoples’
Representatives. 4.
He
leads the Council of Ministers, coordinates its activities and acts
as its representative. 5.
He
exercises overall supervision over the implementation of policies,
regulations, directives and decisions adopted by the Council of
Ministers. 6.
He
exercises overall supervision over the implementation of the
country’s foreign policy. 7.
He
selects and submits for approval to the House of Peoples’
Representatives nominations for posts of Commissioners, the
President and Vice-President of the Federal Supreme Court and the
Auditor General. 8.
He
supervises the conduct and efficiency of the Federal administration
and takes such corrective measures as are
necessary. 9.
He
appoints high civilian officials of the Federal Government other
than those referred to in sub-Articles 2 and 3 of this
Article. 10.
In
accordance with law enacted or decision adopted by the House of
Peoples’ Representatives, he recommends to the President nominees
for the award of medals, prizes and gifts. 11.
He
shall submit to the House of Peoples’ Representatives periodic
reports on work accomplished by the Executive as well as on its
plans and proposals. 12.
He
shall discharge all responsibilities entrusted to him by this
Constitution and other laws. 13.
He
shall obey and enforce the Constitution. (4) No
negative clauses, and not a single sentence found with the word
“no”. Every sentence tells of what the Prime Minister can do. What
then can’t he/she do? The Constitution does not say. This is a grave
danger! To
compare apples with apples and oranges with oranges, this is how the
US Constitution begins to define the office of the
President: Article
II
Section
1. The executive power shall be vested in a President of the United
States of America. He shall hold his office during the term of four
years, and, together with the Vice President, chosen for the same
term, be elected, as follows: Each
state shall appoint, in such manner as the Legislature thereof may
direct, a number of electors, equal to the whole number of Senators
and Representatives to which the State may be entitled in the
Congress: but no Senator or Representative, or person holding
an office of trust or profit under the United States, shall be
appointed an elector. And
further down we have: The
Congress may determine the time of choosing the electors, and the
day on which they shall give their votes; which day shall be the
same throughout the United States. No
person
except a natural born citizen, or a citizen of the United States, at
the time of the adoption of this Constitution, shall be eligible to
the office of President; neither shall any person be eligible to
that office who shall not have attained to the age of thirty five
years, and been fourteen Years a resident within the United
States. (5) It
is to be remembered that we gave the similarity of a constitution to
that of a contract in a company with every major shareholder
exercising power in accordance and, in direct measure of the amount
of investment made. We also pointed out how the TPLF contributed the
greatest share in the struggle to overthrow the regime of the Derg,
and that they should have a major say on how things should be run.
Having said that, this should not give the TPLF an entitlement
to a carte blanche, where they could do anything and everything they
please. This is why the constitution should be brokered, negotiated,
and amended, carefully delineating and specifying the powers of
those who exercise power.
Those elected into office to represent the Sovereign
People of Ethiopia, now occupying seats in the House, have the
mandate and the responsibility to see to it that these negotiations
take place today, and timely amendments are made to the
constitution. Why? When
most people assume power, the natural tendency it to think they can
do anything and everything they please. That is why Hobbes equated
state power to the monstrous legendary creature, The Leviathan.
(6)
Unless this monster is tethered with legal ropes and controlled, the
old adage: “Power corrupts, and absolute power corrupts absolutely,”
becomes true. It is like riding a powerful racecar without
brakes. Such a vehicle
ends up destroying itself, its driver, and many people on its path,
and should be avoided at all costs. One needs to have brakes placed
on the vehicle before one can ride it, for the safety of all
concerned, including the vehicle, its driver, and the people around
it. Such brakes are needed on the Ethiopian Constitution
today. If
that is done, this constitution, which gives the promising
possibility of becoming a “living document,” could lead the nation
far into the distant future, and for many generations to come.
Ethiopia will then have become a nation of laws, instead of a nation
of “tough men” as Messay Kebede correctly analyzed and pointed out
in his book. (7)
And now may be the right time to implement such changes, in this
window of opportunity, where, for the very first time in our history
we witness some “semblance” of democracy. Otherwise,
the present Ethiopian Constitution too, will follow in the footsteps
of the two constitutions before it, (that of Haileselassie, and that
of the Derg,) and end up piled in the dustbin of
history. In
part three, and possibly the final part of this series, we will
examine democracy, what its implications might mean to Ethiopia,
what its real benefits are, and how implementing the
legal changes discussed above, could help bring about democracy,
turning it from the present state of mere “semblance,”
to full reality and fruition. Stay tuned…
G. E. Gorfu
July 15, 2003 Note 1)
Ethiopian Constitution 1994. Civic
Webs Virtual Library 2)
US Constitution. Peter W. Martin,
Legal Information Institute, Cornell Law School. 1993 3)
Ibid. 4)
Ethiopian Constitution 1994. Civic
Webs Virtual Library
5)
US Constitution. Peter W. Martin,
Legal Information Institute, Cornell Law School. 1993 6)
The Leviathan, 1651. Renaissance Edition. Copyright
© 1999 The University of Oregon 7)
Survival
& Modernization, Ethiopia's Enigmatic Present:.
Messay Kebede. Red Sea Press. 1999 |
Having explained in some detail how the interdependence
between the three branches of the US system of government in Part
One of Checks and Balances, we will now examine further details on
how to refine and strengthen the Ethiopian Constitution.