Introduction With the ongoing political crisis in Ethiopia, Sudan and the horrifying news that we hear and read daily, it is near to impossible to focus and conduct academic research on governance in Africa. At the same time however, the political ills of the respective countries, irresponsible use of power, tension between center and periphery and the suffering of the people do not help one sit idle and contemplate. It forces one to do a soul searching exercise in search of possible explanations and way outs. The literature on divided societies and politically mobilized cleavages, theories on ethnic conflict, ethno national mobilization and how to manage them remain relevant to our context. Within in the discourse on federalism, the legal-cum-institutional approach has been dominant but had serious flaws. It does not explain the forces: social and political that necessitates federalism and devolution. This led to the theory of ‘federal society’ that proposes congruence between territorially based cleavages and institutions. Yet this approach as well remained far from complete as there is no automatic link between territorially based cleavages and institutional design. Social diversity could remain as an anthropological fact without having any political relevance. Political mobilization around identity as opposed to other forms of mobilization such as class for self-rule need agency (political parties and elites articulating mass grievances), theory (relative deprivation and the human needs theory) explaining the root causes for mobilization) and state response (or the lack there of) that transform social diversity to identity based political mobilization that impacts institutional design. This specific political and social context impacts the nature and type of democracy and federalism. Territory making and unmaking and design of institutions, whatever form it takes, is not a neutral process and remain deeply contested issue because of rival perspectives one led by the state and the other by ethno national and regional groups that deconstruct the state led project of state and nation building at times leading to clash of nationalisms. Since the emergence of the challenges against the centralized nation state both in the developed and developing world in the 1960s, there is a rich literature providing alternative systems of governance. It is unfortunate mainstream institutions and media in Ethiopia, Sudan and many parts of Africa have little grasp of these rich literature. South Africa’s constitution making seems better informed about the debates. Divided societies exist across different parts of the world. It is not peculiar to Ethiopia, Nigeria or the Sudan. We find politically mobilized ethno national and regional groups in tension with those who hold power at the center in different parts of the world. Those who hold power, resources and media have their own version of nation building: state led nation building. As we know it, the nation state in a context of deep divides has been a mask for centuries promoting the interests and values of the titular nation at the helm of power. The state led nationalism conducted by the titular nation in the name of nation building, unity and territorial integrity has caused immense suffering to ethno national and regional groups at times amounting to ethnic cleansing and genocide. Tigray and Biafra are examples but similar challenges exist in other countries of Africa albeit to a lesser degree. Some question whether such a state deserves to be maintained as the costs for doing so are becoming too high. It has become the main source of insecurity and terror, contrary to its defining feature of providing security to its citizens. Those that contest the state led nation building have their own version of sub state nationalism. Within the context of the Horn of Africa (Ethiopia and the Sudan in particular), the clash between state led nationalism and ethno national and regional based nationalism has led to countless devastating wars and the making and un making of boundaries. Ethiopia lost Eritrea. Sudan lost South Sudan. Somalia lost Somaliland and remained a failed state. Whether Ethiopia will further lose other territories or even other regional states will remain to be seen but the signs and risks are certainly there, more than any time before. Sudan’s ongoing war, itself result of years of tensions and contradictions between the center and periphery is also bringing its own challenges not only for Sudan but also for the region. Yet, we should note that the clash between state led and ethno national or regionally based nationalism is not automatic. Clash and conflict is a deliberate choice made by elites and actors. In other words, short of conflicts, civil wars and fragmentation, there are many sane institutional and policy options that help manage the contestation between the two nationalisms. This book explores the different institutional and policy options available to manage such conflicting interests. There is already a rich comparative literature and political actors can chose one or combinations from the menu of options depending on the particular context. Several international, regional and Ethiopia based academic seminars and publications over the last two decades have explored the different options. There is a lot to learn from these rich experiences and adapt them to the respective contexts. Public law and political institutions are very much context specific but that does not mean there is lack of relevant experience that can address the ongoing challenges. If there is time tested solution elsewhere, why suffer from a well-known political disease? Only a fool would refuse to learn from a relevant experience in another jurisdiction. The approach adopted throughout the book is both comparative and analytical. It looks into the nature of the cleavages and level of political mobilization, analyses the respective constitutions, institutions, the political dynamics and more than anything else provides explanation to the gap between design and lived reality. This book aims to define and diagnose one of the hegemonic frameworks of the 19th and 20th centuries: the nation state. Its evolution, normative assumptions and its pitfalls are discussed in chapter one. Without understanding the ills of the nation state particularly when confronted by politically mobilized cleavages, it is unlikely to find way out to Ethiopia’s age old political crisis and other divided countries covered in this book. As the saying goes, understanding the problem is like having half of the answer. There is already a rich comparative literature that aims to address the ills of the nation state. The menu is very rich. Several western and African countries have over the last three decades attempted to introduce devolution, federalism and power sharing. Many European countries have since the 1970s used these institutional arrangements to address demands from different types of cleavages. There is a literature on nation building and comparative federalism but these two concepts are treated as distinct fields, as if there is no link between them. Indeed this is an important missing link that this book aims to address laying the foundation in the first chapter but with more nuances in chapter four. By doing so the book creates a bridge between the two concepts and analyses how federalism and devolution could be used for polity building in diverse societies. Polity building is all about designing an inclusive political, economic and public policy system. Federalism and devolution are ideally about designing a more inclusive political and economic system. There is thus strong link between polity building and federalism or devolution. This is one major area not well explored within the African context. It is also comprehensive treatment of the four major federal and devolved systems in Africa (also the Sudan that has been oscillating between devolution and federalism at different times) explaining their origin, design, operation and assesses their performance. More importantly, the book explains the distinct nature of federal and devolved systems in the Global South. Federal and devolved systems in Africa cannot be understood in isolation from the nature of state power in the continent. The book explains how state power impacts the dynamics of federal and devolved systems. Despite differences in the nature of the cleavages, level of political mobilization and institutional design among the countries covered in this book, one finds similar result: they all have centralizing features. This is a puzzle. Those mentioned differences were supposed to result in different outcomes. The explanation comes from the nature of state power in Africa that remains far from regulated and that impacts federalism and devolution in many respects. Whatever institutional designs we put in place, hegemonic political party, big men, business elite, army, remain the main actors that operate the political machine behind the formal constitutional arrangements. This is in sharp contrast to federal and devolved systems found in the west. Chapters two to four develop the theoretical frameworks used to analyze the designs, explore the different institutional approaches and assess how they have fared in reality while highlighting possible way outs. The book links political mobilization and institutional design. Several international academic seminars have been held in the last couple of years that aim to address the nature of political cleavages. John Markakis and his colleagues have recently disclosed their major findings in the Horn concluding the nation state as ‘a wrong model’, although they do not provide the alternatives. The publication edited by George Anderson and Sujit Choudhry under the title ‘Territory and Power in Constitutional Transitions’ (Oxford, 2019) was very inspiring in taking that debate steps further as it explores the reasons for mobilization and the institutional responses. The works of Will Kymlicka, Arend Lijphart and Donald Horowitz continue to guide institutional designers and in outlining the alternatives. Several other publications on divided societies that explain their nature and suggest ways to manage them were very helpful in setting the direction of the research. Ethiopians are yet in the dark even after years of civil war and conflict on how to deal with the political crisis in the country. A glimpse to the main stream media and the newspapers in Addis shows the lack of familiarity the country is in with respect to the major causes of state crisis and the war that is consuming the lives of young men and women and the entire economy. Ethiopia is deeply divided country and needs a different institutional set up that matches the level and gravity of the problem. Institutions are not designed in the abstract. They are supposed to reflect the aspirations of the society they are meant to govern. Yet, it is not one dimensional effect. Society also impacts the institutions. It is a dynamic process and that is how political and institutional reform comes to the scene. As the late Daniel Elazar has said, federalism is a continuous seminar in governance. It has to emerge, learn from practice, evolve and adapt across time. But more important is the political will and commitment to implement the federation, the exercise of power within the limits of the law and constitutionalism. The gap between promise and actual reality is causing frustration and conflict. In terms of design, the debate between integrationist vs. accommodation both in theory and practice take center stage in the menu of options. The key however is to understand the nature of the political cleavage and its level of mobilization. Federal and devolved systems with less mobilized cleavages could resort to integration although some element of accommodation would ideally be relevant. Thus that are deeply divided will have to resort to accommodation yet again some element of integration may serve as complementary scheme. Federations that aim to empower ethno national groups cannot avoid the risks associated with intra unit minorities and issues of social cohesion. This has become acute problem in Ethiopia both because of institutional design issues and lack of political will to address these major emerging issues. A previous work on intra unit minorities aims to highlight the nature and gravity of the issue and proposes ways to address it.1 The relationship between federalism and democracy is rarely explored both in the comparative literature and in the Ethiopian context. In deeply divided countries such as Ethiopia, the type of democracy is also a contested matter and the book demonstrates the limitations of majoritarian democracy and shows better alternatives. One of the basic concerns with the federal system in Ethiopia is whether actors at different levels are determined to implement it and what happens when political actors fail to comply with it? There is already rich literature indicating the link between federalism and constitutionalism. Federalism and devolution are rule based. All federal constitutions define the powers of the levels and branches of governments. The constitutions also set limits on power. Yet this is not enough. Federalism is a compact, a covenant between the federal government and states as well as the citizen. The pact and bargain needs serious institutional protection so that federal and regional state actors remain within the limits of their power. The political institutional arrangement takes the form of intergovernmental relations. Previous works have highlighted more on this. But one has to emphasize that it is the alternative to violence. Disputes over power and political differences are supposed to be settled through bargain, negotiation and compromises. Federalism is continuous bargain between the different levels of governments. Yet the political bargain may not work and parties may have to resort to an independent institution and this institutional guarantee comes from the guardian of the constitution. There must be an institution that impartially and autonomously enforces the supreme law when violated by either level of government. Chapter six (constitutional adjudication and governance) discusses in detail the conceptual and empirical issues related to constitutional dispute resolution. The discussion shows it is unlikely for federalism to thrive unless power (be it federal or regional state) is regulated, institutionalized and subject to constitutionalism and the rule of law. There is little that federalism and devolution could do in the absence of constitutionalism and the rule of law. The idea of federalism as compact implies that the compact binds the parties to the negotiated deal: the federal government, the states and the citizen. It ensures the parties autonomy. In this sense federalism requires adherence to particular ethos. The respect and commitment to the federal pact as enshrined in the negotiated constitutional arrangement, faithful compliance and enforcement of the pact and equally important protection against unilateral encroachment. In this sense the compact is constitutional and institutional deal but beyond that it is also a norm for non-centralized governance. It limits the boundaries for the exercise of power and hence is interlinked with the notions of constitutionalism. As argued in chapter one about the nature of state power in Africa and in chapter four about federal and devolved systems in Africa, federalism as compact and the idea of big man, hegemonic one party and centralizing features (imperial center) are strange anomalies and it is not difficult to trace the problems associated with federal and devolved systems in Africa. The ethos of autonomy of component parts, the essence of partnership between the levels of government, the idea of negotiated political settlement (as opposed to use of violence and coercion) and the lack of sanctions to unilateral violation of the pact are the main concerns many African federal and devolved systems continue to face. Federalism as compact has no one center, it is a matrix of multiple centers of power while in Africa there is often one imperial center (chapter four). There is some progress in Kenya, South Africa in this respect but Ethiopia’s case show a federation without constitutionalism. The ongoing wars between the federal government and regional states, countless emergencies or the horizontal tensions also show regime’s frequent resort to violence. There is no federalism in violence. Federalism with its focus on partnership and intergovernmental bargains as way to managing the political issues was meant to be alternative to violence. Ethiopia’s case shows the death of political institutions and the living contradictory narratives prevalent in the country both in the past and the present. Federalism has been betrayed both in the past and more so in the present. Final note that explains the distinct nature of federal and devolved systems in Africa is the relevance of functioning state institutions (state building). Many countries in the west had already well-functioning state institutions before they were federalized or have built them alongside the process of federalization. This is assumed in the west and discussion on federalism or devolution has no link with state building. The nature of state power in Africa comes here again as such institutions are either destroyed as a result of war (for example South Sudan and Somalia) or remain instruments of repressive neo-patrimonial regimes unable to deliver basic services. Without having those institutions or without fixing the issues in state building, there is little that federalism and devolution could do. Indeed, one is forced to argue functioning state institutions are important preconditions for the success of federalism and devolution in Africa. What is federalism and devolution supposed to do in Somalia and South Sudan in the absence of functioning state institutions? State building has to go hand in hand with the process of federalization and devolution.
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