A Conversation with Alemayehu Fentaw on Constitutionality of three Deputy Prime Ministers
Jawar Mohammed*: The constitutionality of the creation of three Deputy Prime Ministers has been questioned. Is there a constitutional violation at all, if so whats violated?
Alemayehu Fentaw*: The Constitution doesn’t envision multiple Deputy Prime Ministers. Rather, the Constitution provides for a single, undivided, post of the Deputy Prime Minister in the same way as it does in respect of the Prime Minister. The Prime Minister can’t, on his own, create ministerial posts or executive offices. He’s invested with the power of filling executive offices by appointment as long as the nominees are endorsed by parliament, but he can’t create executive offices. This is evident even from a cursory perusal of Articles 75 and 74(2) of the Constitution. My reading of the letter and spirit of the Constitution is that the post of the Deputy Prime Minister is as undivided and singular as that of the Prime Minister. The present appointments are clearly unconstitutional. However, In Ethiopia, if the needs of the Executive come into conflict with the Constitution, too bad for the Constitution.
Art. 77(2) stipulates that “It shall decide on the organizational structure of ministries and other organs of government responsible to it; it shall coordinate their activities and provide leadership.”
As can be gathered from this provision, this is what the Council of Ministers can do, not the PM alone. Besides, what the CoM can do is to pass a “decision”, not to enact a proclamation, as to the organizational structure of ministries.” Even to “decide on the organizational structure of ministries” does not mean to create additional ministerial offices or posts only by a fiat decision of the CoM.
That such powers are invested not with the CoM, but with the HoPR should be clear from Art.76(3), which stipulates that “In all its decisions, the Council of Ministers is responsible to the House of Peoples’ Representatives.” It only states that the Executive has the power to “decide” on the issue under consideration. This does only mean that it has to submit its decision on the organization of the structure of the ministries to the House for approval. It becomes evident this article is about the power to change the internal structure of existing ministries, but not about creating additional ministerial posts. To reiterate, this can only be done first by amending the part of the Constitution that provides, in no ambiguous words, for a singular and undivided office of the deputy prime minister. Besides, even when approved by the HoF, it has to be issued in the form of a proclamation, not even a regulation, to amend the existing proclamation for the establishment and definition of powers of the Executive. Even such proclamations cannot amend the Constitution. This is called “hierarchy of laws.” I guess this is the part they missed in their training at Civil Service College.
The alternative contention that the two additional appointees are not deputy prime ministers, even if they hold such a rank also flies in the face of the reality on the ground. If not deputy prime ministers, then what are they? I am sure you won’t say “coordinators,” ”managers,” or “advisors”
This poses a very serious problem to accountability. You know, accountability is a cardinal constitutional principle and it saddens me to see that defenders of the current appointments missed out on its salience. Now the question is: Who are they accountable to, as distinct from Demeke Mekonnen, who is accountable to the PM? In other words, if there’s only one Deputy Prime Minister in the person of Demeke Mekonnen, then who are the additional two deputy prime ministers accountable to? You won’t tell us that they are accountable to Demeke Mekonnen as he is only the first among equals (primus inter pares).
Another, but related issue has to do with succession. As Eng. Mekonnen Kassa put it, “God forbid, if the current PM Hailemariam were to pass, who would be in line to become Acting/Interim PM?” In other words, would they promote all three of them on a fast-track to premiership? The impression that the present appointments and the whole unfolding political drama gives me is that this body politic called Ethiopia is being run as if it were in a state of emergency. So sad. I wished it to be rooted in a solid ground, unshakable, stably anchored in a constitution and constitutionalism. This is lamentable!
Jawar Mohammed: If there is a need for three deputy Prime Ministers, what process should be followed and who is constitutionally empowered to do so?
The procedure of constitutional amendment set out in the Constitution itself must be strictly followed. First a proposal for amendment has to be initiated. According to Article 104 of the Constitution, “Any proposal for constitutional amendment, if 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 when one-third of the State Councils of the member States of the Federation, by a majority vote in each Council have supported it, shall be submitted for discussion and decision to the general public and to those whom the amendment of the Constitution concerns.” Second, the proposed amendment must be approved by a two-thirds majority vote of the House of Peoples’ Representatives and the House of the Federation, in a joint session, and when two-thirds of the State Councils approve the proposed amendment by majority votes. (Art. 105(2))
Jawar Mohammed: One explanation from the government’ side is that ‘ there are no three deputies but one. The other two are just ministers with the Rank of Deputy PM”? Does that help the government go around the constitutional dilemma?
Alemayehu Fentaw : No, you can’t get away with such kind of poorly-reasoned-out arguments. That started out with Bereket Simon scoffing at rumors about such possibilities. Now, some people are quick at recycling what they were fed by the state media. They tell you that these are only “coordinators” of sorts with the rank of deputy prime minister for reasons best known to themselves. Others, out of ignorance or ill-education, tell you that the Prime Minister can legitimately create ministerial offices or posts acting through the Council of Ministers. A typical reasoning of a Civil Service College pedigree was offered by Sisay Mengistie, who contends “The PM using Council of Ministers can create offices (See Art. 77(2)) and to me still there is no more than one Deputy Prime Minister rather with rank of Deputy Prime Minister.”
I’ve tried to show at great length that the latest moves fail the test of constitutionality above. But, to reiterate, simply, appointing more ministers than is required by the constitution is unconstitutional. Neither more nor less.
Jawar Mohammed: Following Meles’ death military officers were promoted without a seating PM, confirmation of the new PM was delayed for a month and now three deputies are created–each of these action have raised constitutional questions. What does the action taken by the party tell us about the state of the constitution in the contemporary Ethiopian politics?
Alemayehu Fentaw: I’d call that a silent coup d’état. The question of succession was decided then and there by the body that endorsed the promotions, even where there was no one to assume the responsibility of the Commander-in-Chief. That was by far the most decisive appointment ever made during the period of succession. The addition of 37 Generals, most of whom from the TPLF, to the top brass radically transforms the nature of the defense forces. The party within the EPRDF coalition that overwhelms the chain of command of the defense forces decides Ethiopia’s fate.
Recall that the promotions were sort of rushed, given that a prime minister, who, ex officio is also the commander-in-chief of the defense forces, had not yet been sworn in. Besides, it was not clear whether Hailemariam Desalegn was the acting Prime Minister, because he was still the Deputy Prime Minister and Foreign Minister. He couldn’t be all at once. You can say there’s collective leadership, but that is not the sort of leadership we want to see in Ethiopia. Collective leadership is a relic of communism. Moreover, the process in which the promotions were made lacks in transparency. As you know, accountability and transparency are two much talked about principles of governance in Ethiopia, which, however, are missing in action.
It is common knowledge that EPRDF launched a program of generational change(aka Metekakat) within the ranks of its leadership in 2009. A point I believe was pioneered by none other than Tefera Walwa, but parroted by the late Meles Zenawi. That program extended its reach to the Ethiopian National Defence Forces (ENDF) in 2010 with a view to replacing 561 high-ranking officers. Leaving the current promotions aside, until 2011, 13 Generals and 303 Colonels had been replaced. The launch of this program also aimed at promoting the equitable representation of the country’s diverse ethnic groups in the ENDF’s top brass. This point was emphasized by Siraj Fegessa, the Defense Minister, who said that an affirmative action will be put in place to enhance the ethnic composition of the army.
How is changing the ethnic composition of the top brass of the defense forces at such a critical stage as in during the extended absence of a Prime Minister, in the history of a country where ethnicity is politically not only salient, but decisive, different from a coup? It’s an outright reversal of the “metekakat” program, if not a coup.
This coupled with the current appointments of Debretsion Gebremichael (PhD) and Tewodros Adhanom (PhD), both of them from TPLF, to the posts of Deputy Prime Minister and Foreign Minister respectively, sealed the succession chapter in favor of TPLF at least until 2015, if we can hope against hope.
What the whole history of Ethiopia’s constitutional development since its adoption in 1994 tells us is just one thing. If constitutions are meant to guarantee checks on political power and ensure the rights of citizens, Ethiopia’s is a spectacularly unconstitutional constitution. It’s a long story and it’s even too stupid to try to explain that.
Jawar Mohammed: Before winding up our conversation, a general observation you want to make regarding homeland politics:
The EPRDFites succumb to self-delusion in entertaining the idea that economic development is all that matters whilst the oppositionists suffer from self-deception in engaging in reluctance to give credit to improvements under EPRDF.
The oppositionists engage in self-delusion in thinking that EPRDF is entirely unpatriotic whereas EPRDF engages in self-deception in characterizing the pan-Ethiopian oppositionists as chauvinist Amhara nationalists and the Oromos as narrow ethnicists.
 Jawar Mohammed, a graduate student at Columbia University, is a political analyst and editor of Gulele Post.
 Alemayehu Fentaw, a visiting scholar at the LBJ School of Public Affairs, University of Texas at Austin, is an academic lawyer and conflict analyst