Five reasons why the Ethiopian national dialogue may face a barred trap
Professor Asfaw Beyene
- The outcome of dismantling federalism is independence, not unity
Many constitutional democracies require broad consensus before fundamental constitutional changes take effect. Some do not allow even supermajority voices for constitutional amendment; they require unanimous vote. For example,
- In Germany’s Basic Law, the law that establishes Germany’s Federalism cannot be amended at all, even by a unanimous vote.
- In Canada, unanimous provincial consent is required for certain constitutional amendments under the unanimity formula. A province’s guaranteed number of seats in the federal House of Commons cannot be changed by supermajority vote; it requires unanimous provincial approval. Amendments affecting the constitutional rules governing the use of languages requires unanimous vote. Contradicting what may be about to happen in Ethiopia, Canada can change the rules for amending the Constitution only with unanimous agreement.
These systems protect federalism at such high cost because they are aware the alternative would be separation and independence. They recognize that constitutions should not be altered solely based on the political preferences of a temporary governing majority because they provoke a counter remedy, secession. Ethiopia’s elections did not provide even a majority vote to the ruling party; elections were not organized in many parts of the country for security reasons. Most importantly, the political future and constitutional status of the Oromo people must be determined by the free and informed will of the Oromo people themselves, not by ancestral interests of domination politics and land grab.
A constitutional framework that recognizes the ultimate right of peoples to determine their political status cannot be scrubbed by belligerent and hostile agents who do not recognize the interests of the people the constitution was framed to protect. To permit such an amendment would create a contradiction: the constitution would recognize self-determination while simultaneously allowing the removal of the very safeguard that gives that recognition some meaning. The binding agreement that allowed the framing of the constitution is above the constitution.
2. Article 39 is part of the constitution and above the constitution
Article 39 of the Ethiopian constitution must be understood not merely as a constitutional provision, but as a prerequisite upon which the constitutional order itself rests. Recognition of the right to self-determination, including the possibility of secession under Article 39, establishes the foundational boundaries within which the state exists. Because this principle defines the relationship between the state, its territory, and the peoples composing it, any amendment that would fundamentally alter or remove this guarantee must logically require unanimous consent of duly established representative body, not a majority vote. As such, tempering Article 39 gives legal power for secession with or without referendum. Eritrea is a good and recent example. When Haile Selassie dismantled Eritrea’s legally mandated autonomy and unilaterally dissolved the Eritrea-Ethiopian Federation, followed by full annexation of Eritrea in 1962, this action prompted an armed national movement, triggering the 30-year Eritrean War of Independence. Is Ethiopia on the verge of repeating the same mistake?
Article 39 protects foundational arrangements from unilateral alteration. It is consistent with Germany’s Basic Law which places limits on constitutional amendments that would undermine the federal structure of the state, even where a unanimous political agreement might otherwise exist. Similarly, Canada’s constitutional framework requires unanimous provincial consent for certain fundamental changes, including those affecting the constitutional rules governing language rights and the basic structure of the federation. These examples recognize that some constitutional principles are not merely ordinary provisions subject to amendment. They are conditions that preserve the legitimacy and continuity of the constitutional order itself. They are above the constitution; the constitution is vain without this Article.
However, Article 39 is not, by itself, sufficient condition to unite a country. But it is a prerequisite that establishes the boundaries and consent-based framework through which the country’s territorial and constitutional existence is maintained. An attempt to remove or fundamentally alter this prerequisite would forfeit the very foundation that gives the constitutional system some legitimacy. The better alternative would be establishing an independent Oromia that many died for.
Therefore, where a nation, nationality, or people reasonably believes that the constitutional guarantees of self-determination and self-government have been fundamentally undermined, it may invoke the protections and remedies provided under Article 39. This protection is not merely a temporary constitutional arrangement; it is a foundational principle upon which the constitutional existence of the state itself rests.
- Can a subset exist without the set? Why are cities not on the agenda?
In mathematics, a subset is defined relative to another set. If A is a subset of B, written:
A ⊆ B
It means that every element of A belongs to B. The larger set is part of the definition. For example:
{1, 2} ⊆ {1, 2, 3}
This concept provides an analogy for federal systems. If Finfinne, Dire Dawa, Moyale, or other cities are constitutionally recognized as existing within a federal arrangement involving Oromia, disputed or not, then removing the constitutional framework that defines that relationship fundamentally changes the legal status of those entities preemptively, without the due process. In other words, if Oromia’s constitutional status is altered or abolished, the constitutional basis governing those cities will also cease to exist. No need to put the fate of these cities on the agenda if they can be separated from Oromia employing amendment shortcuts. These cities will not belong to Oromia since the new constitution makes Oromia non-existent. To some who think this may be a false bite, be careful, even the little teeth of a snake carry poison.
The broader point is that constitutional recognition of Oromia provides the legal framework within which Oromo language, culture, institutions, and regional self-government operate. Any proposal to abolish or alter that framework should therefore be viewed as a likely effort to defragment Oromia under mendaciously organized “constitutional amendment.” It is an attack on Oromo nationalism.
- Can a ruling party amend the constitution without meaningful participation of the people?
Constitutions are intended to express the long-term political settlement of an entire society, not merely the preferences of a temporary parliamentary majority elected following a process considered sham by many. Broad participation, including opposition parties, regional governments, civil society, and the public, strengthens the legitimacy and durability of constitutional change.
Ethiopia’s prominent regions, Oromia, Amhara, and Tigray covering about 70% of Ethiopia’s population did not have elections due to security reasons and cannot participate in the amendment.
When one political party alone designs, drafts, and adopts constitutional amendments without meaningful inclusion of opposing political forces, several existing constitutional quandaries will grow even deeper:
- the concentration of political power in the hands of the governing party;
- weakened checks and balances;
- reduced protection for political, ethnic, religious, and regional minorities;
- diminished public confidence in the constitutional order; and
- greater political instability if significant portions of society reject the amendments as lacking legitimacy.
These challenges already embody Ethiopia, now they will grow deeper. Constitutions must derive much of their authority from broad political acceptance, not from majority rule established through unfair process and without broad participation. This saga around amendment of the Ethiopian constitution makes it ill-founded and mute.
5. A Pending Referendum Proposal Must Be Resolved Before Any Preemptive Constitutional Amendment
Where a legally recognized political actor has formally advanced a referendum proposal pursuant to the existing constitutional framework, and where the governing law provides a mechanism for a referendum under applicable circumstances, the constitutional process cannot be circumvented through a preemptive amendment designed to render that referendum unnecessary or ineffective.
The referendum proposal submitted by the OLF for independent Oromia constitutes a pending constitutional process that must be addressed according to the law in force at the time it was initiated. Allowing a subsequent amendment to override, extinguish, or bypass a properly raised referendum petition would undermine constitutional certainty, procedural fairness, and the principle that constitutional change must follow established legal procedures, not eliminate them retroactively.
A constitutional amendment cannot be used as a procedural shortcut to defeat a lawful petition or to prevent the electorate from exercising a right that has already been invoked under the existing constitutional order. Until the referendum process has been completed, resolved, or lawfully rejected through the prescribed mechanisms, any amendment that seeks to preempt its purpose is procedurally premature and constitutionally questionable.
Accordingly, the referendum proposal advanced by the OLF must be considered and adjudicated before any amendment affecting the referendum directly or indirectly. The constitutional sequence matters: a pending lawful referendum cannot be nullified by a later amendment whose effect is to avoid the very democratic process that the referendum mechanism was designed to protect.
Dr. Asfaw Beyene is a professor of Mechanical Engineering at San Diego State Renewable Energy and Energy Efficiency Center (as well as the Energy Engineering Institute and Industrial Assessment Center.) He has been an active participant in Oromo politics.
