Ethnic Federalism in a Dominant Party State: The Ethiopian Experience 1991-2000 Lovise Aalen r 2002: 2

Insufficient constitutionalism? Few checks on the ruling power
As noted in chapter two of this study, several federal theorists claim that a
federation cannot be genuine unless the government is subordinate to the law
(Burgess 1993; King 1982). If the political forces do not follow the provisions
that are given in the constitution, the guarantees provided have no functions. In
order to decide whether a government is subordinate to the law, it is necessary
to look at the actual operation of the federal system and the practices of the
political leadership. Hence, this is a matter that will be discussed in depth in the
next chapter of this study, which will be dealing with the implementation of the
Ethiopian federal system. However, the legal framework might give us some
clues on how the federal system will work. The legal framework should provide
the essential checks on the ruling powers to prevent them from exceeding their
mandate or violating the rules regulating federal-regional relations. The
question that should be answered here is: Does the Ethiopian constitution
provide enough checks on the Ethiopian leadership to prevent the violation of
federal principles?
In federal systems like that of the United States, the second chamber of the
legislature has the role of checking the power of the other federal institutions
and plays an essential part in the separation of powers. In parliamentary
federal systems like the Australian or the Canadian, the second chamber shall
ensure that all legal actions of the national government are consulted by the
regional units (Sharman 1987: 85). The second chamber in the Ethiopian
federal system, the House of the Federation, fills neither of these roles
completely. The Ethiopian system is formally parliamentary, but has elements
akin to presidential systems. The relationship between the House of Peoples’
Representatives and the executive is regulated by parliamentarian principles
and this altogether minimises the separation of powers and the checks and
balances as seen in the U.S. Constitution (Brietzke 1995: 25). But the Prime
Minister has more power than what is common in parliamentary systems, due
to the facts that he controls the army and that the council of ministers are
accountable to him. Furthermore, the House of the Federation does not have
any role in checking the ordinary legislating process in the HPR, and this
contradicts with the practice of other federal, bicameral parliamentarian
systems. As noted above, it is only in cases where the constitution is at stake, or
where the federal-regional relations at issue, that the House of the Federation
has the power to intervene and make decisions. This implies that the regions,
through the House of the Federation, do not have any say in debating the
general policies on the federal level or proposing laws for the federal level. The
institutional framework of the Ethiopian federation does altogether give a large
space of action for a strong central executive, which is only to a small extent
controlled or checked by the other institutions of the federation, the House of
Peoples’ Representatives and the House of the Federation.
In most federal systems, an independent constitutional court has the
adjudicating role in interpreting the constitution and adapting it to changing

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circumstances. It is essential that this court is independent of political forces, so
that all parties in the country can look upon it as impartial and trust its
decisions to be unbiased. The Ethiopian federal system differs from other
federal systems by not having an independent Constitutional Court. Instead,
the constitutional issues are left to a political organ, the House of the
Federation, and the legal-political Council of Constitutional Enquiry (Art.62).
Any constitutional disputes arising in the court system has to be handled by the
Council of Constitutional Enquiry, an organ under the HF established in 1996
(Art.82, see also Abbink 1997:168). The council is composed of both political
and legal figures: the president and the vice-president of the Supreme Court;
three members of the HF; and six legal experts selected by the HPR. The
council shall submit its recommendations to the HF, which will determine the
final outcome of the issue (Art.83).
This might indicate that the Ethiopian constitution makers do not believe
that arguments between the federal and regional level are possible to solve on a
legal basis, but that there have to be some political deliberations about them.
Nevertheless, it means in practice that the constitutional interpretation is
controlled by the party in power. Although the judiciary in general is
independent, the judges in the court system, including those who are a part of
the Council of Constitutional Enquiry, are appointed by the HPR on the
proposal of the Prime Minister (Art. 81, see also Mattei 1995:124). The
absence of an independent constitutional court has lead observers to claim that
the Ethiopian system lacks the essential limits to government which a
commitment to the principle of constitutionalism should imply (Vestal
1996:35). But if we compare the Ethiopian model with the Russian federation,
for instance, it seems that the Ethiopian system’s lack of checks on the
executive is relatively moderate. In the Russian constitution, the president is
given the power of judicial review and of arbitration between federal and local
bodies or between constituent members of the federation (Smith 2000:349).
This clearly conflicts with the basic federal principle that central authorities do
not have the right to unilaterally redefine the powers of the constituent units.