Monday, May 11, 2020

unconstitutional

Unconstitutional Constitutional Amendment
The interpretation sought by the government is an Unconstitutional Constitutional Amendment which aims to extend the legitimate term of office of the Prime Minister and the two houses. And this is because:
1. There is no constitutional dispute which is envisaged by the constitution to trigger a constitutional interpretation, Article 83 and 84  Proclamation No 798/2013 extends the power of the Council of Constitutional Inquiry (House of Federation 251/2001) to render an Abstract Review and advisory opinion (discretionary). 
2. The constitution clearly restricts the legitimate term of the PM and the two houses and thereby rejects the extension of their official period. You can't just dig to uncover “pandemic” as an excuse to extend your stay in power unless you have an intention to amend the constitution. The task given to the CCI and HoF is to enact an exception for the office term limit of the PM and the HPR, and this amounts to drafting a new constitutional provision (amendment of the constitution) without a rigorous procedure as it is envisaged by article 104 and 105. 
3. South Africa, America, and Colombia are cited by the PM as countries that allow Constitutional interpretation while the constitution is silent. But the cases are wrong comparisons. 

#South Africa: The court interpreted whether the criminal law that permitted the death penalty was in line with the right to life as enunciated in the constitution. The constitution was not silent (talks about the right to life), and there was a dispute (the constitutionality of the death penalty).
#America: The Supreme Court does not provide an abstract review of the un\constitutionality of an issue. Rather it requires real controversy with adverse parties. If there are parties to the case and if there is a real bone of contention, the court but adjudicate the issue. In a way, the court is making law (as the US is a common law country whereby courts are powered to enact law).
#Colombia: the case of Colombia is also different from Ethiopia. In Colombia, when the president wanted to run for a second term despite the constitutional prohibition, they proposed an amendment and the Constitutional Court scrutinized the constitutionality of the amendment procedure. The case is not as twisted by Abiy Ahmed as if the Presidential term limit was changed through constitutional interpretation. But it was through an amendment.  
4. The term of office of the House of Federation will expire together with the term of office of the House of People Representatives and the Prime Minister. So, the HoF as an office to interpret the issue has a conflict of interest. Should we expect that the Members of the House will interpret the constitution against the extension of the five years term of office of the PM and HPR so that they too shall vacate the office? Isn't this conflict of interest repugnant to fairness?
By Henock Abebe

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