By Ermias Dejene
On August 4, 2018, the Ethiopian government has deployed the Federal forces in the Somali Regional State. Following this Federal intervention, we are witnessing a massive outcry for and against the intervention on different social media platforms. Prominent facebook accounts and twitter handles, especially those who were alleged beneficiaries of the TPLF lead government strongly condemned the intervention and labelled the act as that of unconstitutional Federal overreach, and an attack on the Federal order.
Chaos in Jigjiga town
I am lured to write this piece in response to the invective outcry for the respect of the constitution. Thus, I will try to discuss the legality of the intervention in light of the Ethiopian Constitution and Proclamation No. 359/2003; and limits of the Federal government’s power during and after such Federal intervention.
Why Federal Intervention?
Article 51 of the Federal Democratic Republic of Ethiopia states the powers and functions of the Federal government. Among the power given to the Federal government pursuant to the Constitution is “to protect and defend the constitution”. Article 51 does not command the means and methods to be used when protecting and defending the Constitution. This is where Proclamation No. 359/2003 (The Proclamation) comes into play. This proclamation was promulgated for such intervention purposes as the title indicates. It was titled “System for the Intervention of the Federal Government in the Regions”. This law from the gate go indicates that federal intervention was foreseeable and not unconstitutional per se.
The Proclamation requires the Federal Government to intervene in the Region when the Constitutional order is endangered. The constitutional order would be threatened when all or one of the followings occurs:
An activity or act carried out by the participation or consent of a Regional Government in violation of the Constitution or the constitutional order and in particular:
- armed uprising;
- resolving conflicts between another Region or Nations, Nationality or People of another Region through non-peaceful means;
- disturbance of peace and security of the Federal Government; or
- violations of the directive given by the pursuant to this proclamation.
The situation in Somali Region has at least met one of the above conditions. Abdi Iley, the President of the Region has allegedly sent his special forces to Dire Dawa, which is not in his jurisdiction. The deployment of the Region’s special forces into the Federal jurisdiction, without the permission or consent of the government by itself is a crime if not an act of belligerence. Furthermore, it was reported that non-Somali residents of Jigjiga and other towns in the Region have been attacked and deprived of their properties by unobtrusive militias of Abdi Illey. It was also reported at least one Church was maliciously set on fire and a number of banks were looted and vandalized. Amid all of this tumult, there is Abidi Illey, who in past has effectively undermined the Federal order, and coveted to transform his supremacy to another realm.
The Federal Government, being mandated by the Constitution to protect and defend the Constitution and the Federal order, would be held accountable if it has not intervened. In fact, the Federal Government will still be held accountable for its unfathomable delay to intervene.
What measures shall be taken during the intervention?
The proclamation gives a broad power to the Federal Government when intervention is warranted in the Regions. Thus, the Federal Government can take any measure that is reasonable under the circumstances and appropriate to cease the lawless act that justified such intervention. If the incident or incidents that warranted the Federal intervention exhibits violations of human rights the proclamation gives power to the Prime Minister to set up an interim administration and run the regular activities of the Region if the measure taken incapacitates the Executive organ of the Regional Government.
The provisional administration that may be assigned by the Prime Minister shall have the following mandates:
a. lead and coordinate the executive organ;
b. assign heads provisional administration;
c. ensure enforcement of law and order;
d. facilitate conditions for conducting the election;
e. approve a plan and budget for the Region;
f. carry out other duties to be entrusted it by the Federal Government.
The unfolding events in the Somali Region have shown time and again that Abdi Illey long gambolled out of the constitutional order. The unprecedented fatalities of Oromos and the mass displacement that followed was orchestrated by Abdi Illey done in concert with his special force.
In conclusion, Federal intervention in the Regions is constitutionally authorized when the Constitutional order is deemed threatened. The Proclamation not only allows Federal intervention but also gives power to the Federal Government to establish a provisional government, in the region where such intervention was justified. If demanded, the provisional government shall stay in the region for two years, with a possible extension of another six months. Therefore, Dr. Abiy’s deployment of Federal Forces in Somali Region is constitutional, and if justified the Prime Minister can make the executive organ of the region incapable and establish a provisional government.