Constitutional Checks and Balances - II

By G. E. Gorfu

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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.  Almost every clause is ‘an enforcing or empowering’ clause. Its emphasis is in giving powers to the Executive, to House Representatives, or to the Federal House. For example, the first ten articles of the Ethiopian Constitution for the House of Representatives read:

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  

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