Makonnen Tesfaye, 4 August 2019
- It is the Constitution, Stupid.
Meaza Ashenafi’s, the President of the Federal Supreme Court,unashamedly open advocacy for and pronouncement of a military action against the Regional State of Tigray on a public platform is a further escalation of the Abiy Government’s “undeclared” war on Tigray, which is targeted against the Region’s democratically elected political leadership and people. This brazen act of warmongering by the highest officer of the Ethiopian Judiciary is not only a drastic and desperate political act but also undermines the fundamental pillar of the Federal Constitution, which is based on
the separation of the powers of the executive, legislative and judicial branches of the state as stipulated in Article 50, Sub-Article 2; Article 78, Sub-Article 1;and Article 79, Sub-Articles 2 and 3, which clearly require the separation of powers and the independence and neutrality of the Judiciary from the political interference or influence of any government body:
“On the Structure and Division of Powers, the Federal Government and the States shall have legislative, executive and judicial powers”;
“An independent Judiciary is hereby established by this Constitution”;
“Courts at any level shall be free from any interference or influence of any government body, government official or from any other source”; and
“Judges shall exercise their functions in full independence and shall be directed solely by the law”
(Source: Article 50, Sub-Article 2; Article 78, Sub-Article 1; and Article 79, Sub-Articles 2 and 3, The Constitution of the FDRE)
Under the President’s watch, in particular over the last ten months, it has been abundantly made clear the increasing subordination of the Judiciary to the Executive, the politicisation of the judicial processes, the undermining of the rule of law, including abandoning of the basic principles of Habeas-corpus (e.g. unlawful and arbitrary arrest), Ultra-vires(e.g. exercising beyond the power conferred by law) andSub-judice (e.g. trial by media). The highest authorities of the Judiciary – with the President of the Federal Supreme Court at the head and in league with the Attorney General – are working hand in glovewith the Executive in undermining the rule-of-law and the Federal Constitution, and are failing to provide justice and hold the Executive in check.
It is a supreme irony that the President’s speech on 01.07.2019 (occasioning the Federal Supreme Court Three Years Reform Project Plan Report)that pontificated about the values of the independence, neutrality and accountability of judges only a month later were fatally underminedby her bytaking a political stand and declaring war on a Regional State. This unlawful act by the President is tantamount to driving a coach and horses through the edifice and pillar of the Ethiopian Constitution.
It is also no coincidence that under the President’s watch, Ethiopia’s extremely dismal global ranking in the World Justice Project’s Rule-of-Law Index is 118th out of 126 countries in 2019, worse than its 107th ranking in 2018. Even by Sub-Saharan African countries standard Ethiopia’s ranking in 2019 is 27thout of 30 countries, again worse than its ranking of 16th out of 18 countries in 2018 (Source: World Justice Project’s Rule-of-Law Index, 2018-19, 2017-18).
Furthermore, examining the details of Ethiopia’s2018-19 % Scores on the WJP Rule-of-Law Index reveal the sorry state of the Judiciaryand itsemersion in a deep quagmire – for example, scoring 17% for respect for due process; 13% on absence of government influence in criminal justice; 24% on absence of government interference on civil justice; 32% on constraining executive power (check and balance); 19% on the fundamental right to life and security; 21% on civic participation; 20% on publicized laws and government data; 14% on right to privacy; 23% on freedom of expression; and 22% on freedom of association(Source: World Justice Project’s Rule-of-Law Index, 2018-19).This is nothing but a devastating evidence-based indictment of the so-called “reformist and change” Government by an external global agency, whose findings concur with the perceptions of lack of justice by the vast majority of the population.
- What Next?
It is a no brainer that the President of the Federal Supreme Court has transgressed the constitutional redlines and consequently has lost all creditability and respect as the highest judge in the land. Her position as an independent, neutral and accountable judge is fatally compromised and unsustainable. The one and only honourable thing to do is to resign her position immediately and unconditionally apologise to Tigrayan people and Government for her brazen political act and blatantdeclaration of war. Failing that, it is the duty of the House of Representatives and the House of Federation to censure her pronouncement as flagrant warmongering and unconstitutional act.
The Tigray Regional Government and Parliament need to take the matter extremely seriously by denouncing her declaration of war on Tigrayans,and seek redress from the relevant braches of the state.
Above all, it is important to recognise that the President’s audacious act is in the first placeprofoundly political in nature, albeit legally couched, and is a manifestation and reflectionof the on-going, co-ordinatedonslaughts on the Ethiopian Federal Constitution and the Nations, Nationalities and Peoples by the hegemonists, chauvinists and unitarianswho are deeply embedded in all the branches of the state. It is incumbent on all law-abiding citizens, democrats and federalists in all the Regions of the Country to recognise this fundamental truth and threat as an attack on them as well, and to take a clear stand by denouncingit and demanding her resignation.