Saturday, June 18, 2005

Scholar Says State of Emergency Violates Constitution

allAfrica.com -- A leading expert on the Ethiopian constitution says the prevailing political climate has seriously undermined the supremacy of the law of the land as well as the rule of law in the country.

Dr Fasil Nahum, a constitutional law expert and author of Constitution for a Nation of Nations, said: "The post-election situation has put the nation almost on the brink of 'unconstitutional state' where key constitutional provisions seem meaningless."

Nahum, who has worked as a political and constitutional adviser for nearly three decades, has emphasized that both the government as well as the opposition need to defend and respect the constitution at any cost. Asked if the current state of emergency imposed by Prime Minister Meles Zenawi was constitutional, he said: "Though the PM felt that there was a need to take special measures to ensure peace and security, the power to impose such a measure is vested in the Council of Ministers."

Article 77 (10) of the Constitution of the Federal Democratic Republic of Ethiopia stipulates that the Council of Ministers has the power to declare a state of emergency and in doing so, it shall, within the time limit prescribed by the Constitution, submit the proclamation declaring a state of emergency for approval by the House of Peoples' Representatives.

He explains that Article 93 states that if a state of emergency, or anything to that effect, is declared when the House of Peoples' Representatives is in session, the decree must be submitted to the House within forty-eight hours of its declaration. "The decree, if not approved by a two-thirds majority vote of members of the House of peoples' Representatives, shall have no effect," said Dr Nahum. He noted that the legality of any state of emergency without pursuing these constitutional procedures would be unconstitutional and could open the door for tyranny and despotism.

Dr Nahum said that the yardstick of a democratic system and the prevalence of the rule of law was the full implementation of the constitution. "The constitution is supreme. I believe the emergence of a strong opposition within the constitutional framework should not be viewed as a threat to the government. It should rather be applauded as democracy is unthinkable without contending political parties who present to the electorate divergent programmes to choose from."

Regarding the dispute about alleged vote rigging, he advised that it must be investigated thoroughly and all parties should use the legal avenues that the constitution guarantees them. However, he underlined that the opposition feel threatened and scared because of suppressive measures. "As a constitutional lawyer, I measure the legality of any exercise in light of the constitution. It seems to me that the critical question at this moment is whether the constitution has been violated or not.

"If there are any actions that compromise the constitution, the House of Peoples' Representatives should take all the necessary measures to rectify any unconstitutional trends," he noted.

According to Dr Nahum, if citizens have been treated in a way which is contrary to the Constitution, they should legally challenge any unconstitutional actions whether individually or in groups. "No individual or state body can take away their constitutionally enshrined rights."

Dr Nahum highlighted that some vigilantes within the security forces might violate human rights and civil liberties without knowing its illegality. "We should all make sure that security forces do not commit serious crimes and human rights abuses by detaining, torturing or killing members of the opposition. Anyone who commits or authorises such a crime should be brought before court to face the consequence of their actions.

He claims that key human rights provisions make up one-third of the constitution covering a wide range of civil, political, economic, social and cultural rights. Nahum admits that the implementation of these rights has posed a critical challenge especially at this time.

Opposition parties have been alleging that their members and supporters have been subjected to extrajudicial killings, torture, beatings, mass arrest, house arrest of key political figures, illegal surveillance and fair denial of a public funded media. In a heavy-handed crackdown, troops loyal to Prime Minister Meles opened fire on Monday and killed over 36 people and wounded over one hundred others. Thousands of students, opposition supporters and leaders have been arrested by security forces, which many believe is a key test to the commitment of the government to respecting the constitutional order.

"I don't personally wish to see the country sliding back to a police state. The constitution should be respected unconditionally. If that does not happen in earnest, it would be the end of the Ethiopian constitution, dead and buried," Nahum said.

Ethiopia has ratified a number of international treaties and conventions including the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, which have been incorporated in the constitution as per Article 9, which also declares the supremacy of the constitution.

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