The Conclusion and Recommendation of policy study institute on Constitutional Amendment.

1. Conclusion

 A constitution is adopted with a degree of presumed permanency in the sense that it is

assumed that the constitution will not be changed frequently and easily. This does not,however, mean that a constitution is immutable. Countries introduce changes to their

constitutions whenever the need arises and the political context allows. The change so introduced may range from a minor amendment to a complete overhaul of the constitutional document. Indeed, seldom do constitutions, if at all, allow or contain

provisions providing for a procedure for their own replacement. However, almost all

constitutions contain a provision providing for their amendments.

 It has been over three decades since the FDRE Constitution was adopted. In the last 30

years, the constitution has transformed the country in so many ways. It has redefined

the identity of the state; a state that defined itself as a nation-state now identifies itself

as a multinational state. In a country where claiming ethnic identity was seen

disapprovingly, ethnicity has become the core factor of state organisation and political

mobilisation. It has transformed a once unitary state with an extremely centralised

system of government into a federal country.

 Like any other constitution that introduced such a radical change, the FDRE

constitution has been a controversial document since the day it was adopted. For some,

the manner of its adoption - a process that was dominated by a political party that came

out victorious in the 17 years of civil war against the Derg-was problematic and has

rendered it a constitutional document of the victors imposed on the country. Besides,

the party made sure its political aims and goals found their way into the constitution.

For others, the very contents of the constitution are problematic; its focus on ethnicity

in reorganising the state's territorial and political structure in particular was a major

issue of contention at the time of its adoption and since then. Many view the

constitution as a kind of document that would bring about what Steiner calls 'a counter-

ideal' of accentuating divisions, legitimising separateness, alienating groups from one

another, making social cohesion unattainable, enfeebling a ‘sense of common

humanity’ and, finally, destroying ‘all unifying elements. Yet there is a large

segment of the population that regards the constitution as a sacred document of emancipation. For these groups of people, the constitution halted ethnic-based political

and social exclusion, recognised the right to self-determination of hitherto marginalised

communities, and provided territorial and institutional space for every community to

protect and promote its cultural and linguistic identity.

 Despite being such a controversial document, the constitution remains almost

unchanged for over three decades. Now there is a growing demand for some form of

constitutional change since the sorry state of the country's political life is, in one way or

another, linked to the constitution. Now the question this research aimed to answer was

whether the demand for a constitutional change is a popular demand or one pushed by

narrow groups of political elites. Is there a popular desire to see a constitutional

change? Which parts of the constitution are to be changed?

 There is a remarkable awareness of the constitution among the participants of the

research. They showed a great deal of awareness about the controversial provisions in

the constitution and their political implications. The awareness and interest in the

constitution among ordinary members of every community provide the necessary

context for a participatory constitutional amendment.

 There is also virtually no disagreement among the research participants that there is a

need for constitutional change. Yet, the reason why different individuals seek a

constitutional change is different. There is almost a consensus among key informants

and respondents that there is no desire for a complete revision of the constitution. The

respondents and the informants believe that save for a few provisions, the constitution

is a good document that does not need a complete revision. The kind of constitutional

change which is supported almost by every informant and respondent is a constitutional

amendment.

 There is a general optimism that a constitutional amendment will bring about a more

legitimate constitution and some positive changes in the country's politics. This is based

on the assumption that the political situation is directly linked to the constitution and

fixing the constitution would fix the politics.

 Research participants understand, regardless of ethnic background that cultural and

linguistic rights of ethnic communities should be observed and the constitution does not

need amendment in that regard. The most divisive provisions the secession clause of

Article 39 and the sovereignty of nations, nationalities and peoples. While the overall

result shows that majority of research participants support amendment to these clauses,

there is a division along major ethnic groups. While overwhelming majority of research

participants from Oromia and Somali regions desire these constitutions should remain intact, other ethnic groups like Amhara, Afar, SNNPRS, Sidama, and Southwest

overwhelming desire the amendment. Similar pattern is also seen for the ethnic parties,

the status of Addis Ababa, and additional working language for the federal government.

 The current political system has both challenging enabling conditions for a

constitutional reform. The war in northern Ethiopia and ethnic conflicts at any other

part of the country will hinder extensive public consultations for a reform. At the same

time, the current political problems, largely rooted on and manifested through ethnic

conflicts and ethnic politics can be used as a proof to come to terms than we need revise

the constitution to resolve at least some of the problems that have an implicit or explicit

constitutional backup.

2.Recommendations

 The research data unequivocally demonstrate support for constitutional reform and

indicates that such a reform should mainly focus on the 'ethnic provisions' of the

Constitution. Provisions that are a candidate for debate and dialogue leading to a

constitutional amendment are unsurprisingly those that are linked with the management

of diversity. These include, the preamble, article 8, national symbols, federal languages,

the ethnic-based territorial arrangement, article 39, in particular, the secession clause,

and the status ethnic-based parties. The research found out that these provisions are

highly divisive across ethnic groups and which implies that a well-accepted public

dialogue is necessary to amend these provisions. Even if we can learn from the research

results that at least a little majority of the respondents can be identified in favor or

against these provisions, they remain most divisive and the pattern of division being

clear between Amhara, Afar, SNNPRS, and the like on the side and mainly Oromo and

Somali on the other hand. A reform process requires knowledge of this pattern.

 If all these provisions are somehow affected by the constitutional amendment process,

can the end result could be considered a constitutional revision rather than a

constitutional amendment? It was argued in the literature review that a considerable

reform of these ethnic provisions could amount to a constitutional revision rather than

to an amendment since some of the ethnic provisions constitute the basic principles and

foundations of the existing constitutional order. Yet, we have also pointed out that

whether a constitutional reform would amount to an amendment or to a revision –

which qualification is determined by the degree of substantive change effected to the

existing constitution – is not that relevant in the Ethiopian context. Whereas in some

countries, revising the constitution through the constitutionally prescribed constitutional

reform procedure is prohibited, revising the constitution is permitted in others, though

the applicable procedure is more stringent. In Ethiopia, the constitutional reform

procedures entrenched in Articles 104 and 105 of the Constitution do neither prohibit a

constitutional revision nor contain a specific procedure for it. This means that both amendments and revisions can be effected through the use of the constitutionally

prescribed procedure. Nonetheless, we have also pointed out that in the case of a complete overhaul of the existing constitutional order, a participatory and inclusive

reform process is all the more important.

 Reforming the existing constitution, either through amendment or revision, by using the

constitutionally prescribed reform procedure is recommended. It has the advantage of

legal continuity: the new legal arrangement is not constituted ex nihilo, which evokes

an attachment to the values of legality and the rule of law since it demonstrates that all actors, including constitution-makers, are subject to the law. In this scenario, the

existing/constitutionally constituted political institutions (including the House of

People’s Representatives, the House of the Federation, and the regional State Councils)

would be in charge of the process (both its initiation and the final approval of the

constitutional reform). Yet, although a constitutional reform procedure needs to have a

degree of rigidity, the Ethiopian procedure is too rigid when it comes to the reform of

the human rights provisions, including Article 39 on the right to self-determination.

Any reform of the latter provision – and the study has indicated that there is

overwhelming support for amending the secession provision included in Sub-article 4

of Article 39 – requires the unanimous approval of the regional State Councils, which

seems an insurmountable impediment, particularly in the current political context. Does

this make reform of this provision currently impossible? In this regard, research has

shown that a lot of constitution-making in other jurisdictions has taken place outside the

bounds of the constitutionally prescribed procedure. The legal reasoning legitimating

such extra-constitutional constitutional reform is that the constituent power (these are

the nations, nationalities, and peoples in the Ethiopian case) is not bound by the

existing procedures since the latter are merely constituted by the former. The

constituent power cannot be restricted by constituted procedures. This argument implies

that all provisions of the current Ethiopian constitution could be reformed without

following the procedures of Articles 104 and 105. Yet, in such a scenario, the

constituted political institutions would have to cede their role to the constituent power.

To be concrete, a constitutional reform effectuated extra-constitutionally could only be

approved by the constituent power itself through a referendum or through institutions

representing the constituent power, such as a constituent assembly, elected for the

specific purpose of constitutional reform.

 Whether constitutional reform will take place using or outside the existing procedure,

we emphasized the importance of a participatory and inclusive reform process. The

importance of a constitutional reform process with these characteristics is also

underscored by many research respondents. The respondents highlighted that

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constitutional reform in Ethiopia is mainly called for because of its anticipated

contribution to ending violent conflicts and supporting sustainable peace. The

achievement of this objective does not only require the design of adequate

constitutional provisions that can bridge or mitigate ethnic divisions and tensions, but

also a reform process that offers meaningful and adequate opportunities for popular

participation and societal inclusion. Not only does such a process offer a forum for

societal, including inter-ethnic and political, dialogue that may produce a shared

understanding, it will also benefit the societal legitimacy of the constitution. A

participatory and societally inclusive constitutional reform process thus benefits

national unity and constitutionalism.

 Nonetheless, the literature study has cautioned that a participatory reform process risks

deepening ethnic cleavages because it enables and encourages discussion on highly

divisive issues, a concern shared by many respondents in the study. That is why several

respondents underscore the importance of embedding the constitutional reform process

into the ongoing national dialogue, which aims to reduce political and ethnic

polarization and rebuild trust and social capital, as such creating a more fertile

environment for constructive constitutional reform discussions. Popular participation

can take a variety of forms and take place throughout the reform process: before,

during, and after the drafting stage. Although the referendum is the archetypical form of popular participation, it doesn’t seem to be a preferred option in the Ethiopian context.

Since it could not be avoided that many voters would lack an adequate understanding of

the constitutional draft, voters could be easily manipulated by self-interested actors who

misrepresent the constitution or focus on contentious issues only. Carefully crafted

compromises that are the result of difficult inter-ethnic and political negotiations may

thus unravel, and the organization of a referendum may therefore undo the unifying

effects of the national dialogue in which the constitution was drafted. It may

consequently re-invigorate ethnic and political tensions. While it is encouraging that the

public be aware of the various provisions of the constitution and conscious of their

political implication, a constitutional amendment should be preceded with massive

awareness creation and debate on various aspects of the constitution.

 While at some point, political dialogue should begin that leads to a constitutional

amendment, the process should not be rushed. Unrealistic timelines and deadlines

should not be used.