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al mariam

al mariam
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San Bernardino, California, U.S.A.
Birthday
January 18
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Professor
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California State University, San Bernardino
Bio
Professor Alemayehu G. Mariam teaches political science at California State University, San Bernardino. His teaching areas include American constitutional law, civil rights law, judicial process, American and California state governments, and African politics. He has published two volumes on American constitutional law, including American Constitutional Law: Structures and Process (1994) and American Constitutional Law: Civil Liberties and Civil Rights (1998). He is the Senior Editor of the International Journal of Ethiopian Studies, a leading scholarly journal on Ethiopia. For the last several years, Prof. Mariam has written weekly web commentaries on Ethiopian human rights and African issues that are widely read online. He played a central advocacy role in the passage of H.R. 2003 (Ethiopia Democracy and Accountability Act of 2007) in the House of Representatives in 2007. Prof. Mariam practices in the areas of criminal defense and civil litigation. In 1998, he argued a major case in the California Supreme Court involving the right against self-incrimination in People v. Peevy, 17 Cal. 4th 1184, which helped clarify longstanding Miranda rights issues in criminal procedure in California. For several years, Prof. Mariam had a weekly public channel public affairs television show in Southern California called “In the Public Interest”. Prof. Mariam received his Ph.D. from the University of Minnesota in 1984, and his J.D. from the University of Maryland in 1988.

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JUNE 11, 2012 1:16AM

Ethiopia: On the Road to Constitutional Democracy

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roadOver the past few months, I have been penning occasional commentaries in a series I called  “Ethiopia’s transition from dictatorship and democracy”. In my last such commentary, I argued that “on the bridge to democracy, there is often a collision between individuals and groups doggedly pursuing power, the common people tired of those who abuse and misuse power and the dictators who want to cling to power.  The chaos that occurs on the transitional bridge from dictatorship to democracy creates the ideal conditions for the hijacking of political power, theft of democracy and the reinstitution of dictatorship in the name of democracy.” In this commentary, I focus on the need for constitutional “pre-dialogue” (preparatory conversations) in anticipation of some potential roadblocks on Ethiopia’s inexorable march to a constitutional democracy.  

Roadblocks to Democracy 

Most societies that have sought to make a transition from tyranny and dictatorship to democracy have faced challenging and complex roadblocks. After the Americans effectively ended Britain’s tyrannical rule in 1776, the 13 colonies experimented on their own until 1781 when they signed articles of confederation creating a loose political association and a national government. That effort failed because the states had reserved important powers over commerce, foreign trade and affairs to themselves and denied the national government the power to tax, raise an army or regulate trade.  They overcame these and other major problems when they adopted their current constitution in 1787. 

More recent history shows the extraordinary difficulties countries face in transitioning from dictatorship to democracy.  Since the collapse of the Soviet Union and the dissolution of communist regimes behind the Iron Curtain, the transition democracy has been difficult and incomplete. The wave of democratization in the Eastern Bloc countries and the former Soviet states in the 1990s lifted only a few of them into the ranks of liberal democracies with free elections, multiparty democracy, independent media and judiciary and so on. Various explanations have been offered for the stillbirth of democracy in these countries. One persuasive explanation suggests that in those countries where democracy succeeded, there were strong democratic forces with sufficient power to  impose hegemony on supporters of the moribund communist dictatorships. Dictatorships reinvented themselves and reemerged in new configurations where supporters of the previous dictatorship maintained a decisive power advantage. 

The “Arab Spring” that signaled the dawn of democracy in Libya, Egypt, Tunisia, Yemen and other Middle Eastern countries today faces formidable challenges. In Egypt, the “interim” military government runs the transition to constitutional civilian rule. The sly military fox is guarding the henhouse of democracy in Egypt. Many Egyptians openly question whether the military is window dressing democracy to whisk Egypt back to the old Mubarak-style dictatorship with a democratic façade. The fact that Mubarak's last prime minister, Ahmed Shafiq, is a leading candidate (and widely perceived as shoo-in) in the presidential race in mid-June lends support to the cynical view that the more things change in Egypt, the more they remain the same. But more alarming is the fact that since the onset of the revolution in Tahrir Square in January 2011, there have been more than 12,000 Egyptians arrested and many brought to trial before military courts on a variety of questionable charges. Many respected human rights organizations have been subjected to harassment and investigation for “treason” by the state security prosecutor’s office. Is Egypt skating on the slippery slope of dictatorship? 

In Tunisia, the Constitutional Assembly elected last October to draft a new Constitution within one year seems to show some hopeful signs. The most encouraging sign comes from the fact that the constitutional drafters do not seems  preoccupied with time consuming divisive political issue but instead are focusing their efforts on establishing a robust constitutional structure that addresses potential abuses of power and prevent the future rise of a dictatorship. Using different “commissions”, the drafters are discussing the suitability of parliamentary or presidential systems, the structural controls needed to  maintain the balance of power in the branches of government and institutionalizing  legislative oversight of the executive branch, the need for a constitutional court, decentralization of power and other issues. 

Libya’s progress on the road to democracy is not very encouraging. In August 2011, an anonymously  published “Draft Constitutional Charter for the Transitional Stage” of Libya was circulated widely. It seemed to be a cut-and-paste job festooned with the buzzwords of Western liberal democracies about the rule of law, personal freedoms of speech and religion, multiparty democracy and so on. Other drafts are also in circulation. This past March a 60-person constitution drafting committee was appointed  equally representing Libya’s three main regions. But it seems the Libyans have more urgent problems of stability and security. In the absence of an effective national army, the ragtag army of revolutionary fighters and militiamen who overthrew Gadhafi continue to clash with each other and operate in their respective areas with impunity. The silver lining in the dark constitutional cloud over Libya appears to be the existence of independent groups of Libyan lawyers, jurists, scholars, intellectuals and others hard at work preparing draft constitutions. Though such disparate efforts could contribute to the existing constitutional chaos and confusion, it could ultimately contribute to broader public awareness and participation in the constitution-making process in Libya. 

Roadblocks to Constitutional Democracy in Ethiopia? 

Not unlike the “Arab Spring” countries, Ethiopia will likely face the critical question of what to do with the current constitution after the fall of the ruling dictatorship. One could reasonably expect vociferous calls for the adoption of an interim constitution (assuming the military will not make a naked power grab) and establish a transitional government.  The Ethiopian Constitution was originally engineered by one-man to divide, rule and control and for one party to exert total domination. Its general application has been minimal. Its provisions are systematically and routinely ignored, avoided and overlooked by the ruling dictatorship (see reference below to the recent U.S. State Department’s Country Reports on Human Rights Practices for Ethiopia). There is widespread dissatisfaction about its uses, misuses and abuses by the ruling party and its iron-fisted leader; and there are compelling reasons for dissatisfaction. In 2009,the International Crises Group, a highly respected non-partisan and independent organization which gives advice on the prevention and resolution of deadly conflict to the United Nations, European Union and World Bank, pinpointed one of the most contentious issues that has caused wide dissatisfaction: 

The EPRDF’s ethnic federalism has not dampened conflict, but rather increased competition among groups that vie over land and natural resources, as well as administrative boundaries and government budgets. Furthermore, ethnic federalism has failed to resolve the “national question”. The EPRDF’s ethnic policy has empowered some groups but has not been accompanied by dialogue and reconciliation. For Amhara and national elites, ethnic federalism impedes a strong, unitary nation-state. For ethno-national rebel groups like the ONLF (Ogaden National Liberation Front; Somalis in the Ogaden) and OLF (Oromo Liberation Front; the Oromo), ethnic federalism remains artificial.

Accountability for abuses of power, human rights violations and corruption are equally likely to be compelling reasons for an interim constitution. This is evident in the findings of the recently issued U.S. State Department’s Country Reports on Human Rights Practices for 2011

Membership in the EPRDF [the ruling party] conferred advantages upon its members; the party directly owned many businesses and was broadly perceived to award jobs and business contracts to loyal supporters. The opposition reported that in many instances local authorities told its members to renounce their party membership and join the EPRDF if they wanted access to subsidized seeds and fertilizer; food relief; civil service job assignment, promotion, or retention; student university assignment and postgraduate employment; and other benefits controlled by the government… Some government officials appeared to manipulate the privatization process, and state- and party-owned businesses received preferential access to land leases and credit… 

The law requires authorities to obtain judicial warrants to search private property; however, in practice police often ignored the law… The government reportedly used a widespread system of paid informants to report on the activities of particular individuals… Security forces continued to detain family members of persons sought for questioning by the government…The national government and regional governments continued to put in place “villagization” plans in the Gambella, Benishangul-Gumuz, and Somali regions… According to the [Human Rights Watch] report, security forces beat (sometimes leading to death), threatened, arrested without charge, and detained persons who were critical of planned villagization of their communities, and this caused persons to fear speaking out against the process… While the constitution and law provide for freedom of speech and press, the government did not respect these rights in practice… The government continued to arrest, harass, and prosecute journalists, publishers, and editors… Students in schools and universities were indoctrinated in the core precepts of the ruling EPDRF party’s concept of ‘revolutionary democracy’… 

Learning From the Mistakes and Successes of Others: Pre-Dialogue for a Constitution-Making Process in Ethiopia 

If the recent history of upheavals in North Africa offers a lesson to Ethiopia, it is the fact that it will likely necessary to establish a “caretaker government” to lead in the transitional period. Such a government could facilitate governance during the transitional period, expedite the drafting of a permanent constitution and address critical political and security issues that may arise until a democratically elected government is installed. Although one could endlessly speculate on alternative scenarios in the aftermath of the fall of dictatorship in Ethiopia (including direct military intervention, installation of  pre-arranged leaders by international interests, severe political strife, a “unity government”, etc.,), the important thing in my view is to start an informed constitutional conversation (a “pre-dialogue”) now, and not wait for  some some dramatic event to happen to begin discussion.   

One of the important lessons of the “Arab Spring” is that those who led the struggle against dictatorship had failed to seriously consider the question of who should lead the constitutional review and drafting process in the transitional period. Western nations were too eager to bridge the gap by sending their  constitutional experts, specialists, scholars and tons of instructional materials on how to structure a robust democratic constitution. National stakeholders representing political parties and organizations were quickly organized as transitional governments and allowed to operate within the parameters set by the military backing them up. This approach to “democratization” has not been particularly conducive to giving voice and allowing meaningful participation by ordinary citizens, civic society and grassroots organizations. As a result, it appears the constitution-making efforts in those countries undergoing the proverbial “Spring” reflects the general desires and wishes of the elites much more than the ordinary citizens who do not have sufficient familiarity with the process or the substance of the draft constitutional provisions. 

This underscores the importance of inclusiveness of all segments of society in any constitutional pre-dialogue (and dialogue) in Ethiopia and in the Ethiopian Diaspora. An elite and expert-driven dialogue which excludes or underrepresents grassroots and civil society organizations is likely to be an exercise in constitutional window-dressing. While expert and elite participation is necessary because of the technical skills required in drafting and compromises that need to be made by the major stakeholders, the debates and conflicts  between political parties, organizations and leaders should not and must not be allowed to dominate or overshadow the vital need for mass public participation in the constitutional dialogue. In the “Arab Spring”, civil society and grassroots organizations, women, the youth, and other underrepresented groups have not been adequately included in the formal dialogue and will likely not be involved in the final negotiations and drafting of a new constitution. Is it not ironic that the young Egyptians who sparked the revolution and sacrificed their lives in overthrowing Mubarak now have so little voice in the drafting of the new constitution? 

There are other important lessons Ethiopians can learn from the general experience of the “Arab Spring”. Public civic education on a new constitution must be provided in the transitional period.  Ethiopian political parties, organizations, leaders, scholars, human rights advocates and others should undertake a systematic program of public education and mobilization for democratization and transition to a genuine constitutional democracy.  They must initiate and lead broad and ongoing dialogue on the current constitution, its advantages and disadvantages and present constitutional alternatives for a new and genuinely democratic Ethiopia.

Political polarization of society is a predictable outcome in a post-dictatorship period. To overcome conflict and effect a peaceful transition, competing factions must work together, which requires the development of consensus on core values. The “Arab Spring” experience shows the difficulty in developing consensus as they seem to be bogged down in all sorts of divisive issues rooted in religion, identity, ethnicity and so on.  What should be the core values of a new democratic Ethiopia? How does one transform subnational fragmentation and disintegration into national cohesion and integration?   

To have a successful transition from dictatorship to constitutional democracy, Ethiopians need to practice the arts of civil discourse and negotiations. As difficult and embarrassing as it is to admit, many Ethiopian elites on all sides seem to suffer from a culture of inflexibility and zero sum gamesmanship. In other words, one has to win always, and the rest must always lose. We have seen absurd zero sum games played over the past 21 years. In May 2010, the ruling party claimed it had won 99.6 percent of the legislative seats!  In 2008, the same ruling party claimed that in the local and by-elections it had won all but four of 3.4 million contested seats! A clean break from such zero sum culture and zero sum mentality is needed. Such absurdity and rigidity is also the perfect breeding ground for the re-emergence of a new dictatorship. It must be replaced by a culture of tolerance, good will, civility and respect in national dialogue. 

One of the criticism aimed at the interim and transitional governments in the “Arab Spring” countries is lack of transparency in the constitution-making process. In Egypt, it seems clear that regardless of any new constitution, the military is unlikely to give up its control to civilian supremacy and risk losing its massive economic holdings in real estate and the services sector. In a transitional period, the public is often left in the dark about the constitution drafting process process and transitional governments tend to be somewhat secretive about their activities. In Libya, political activists in major cities have held demonstrations demanding more transparency in the transitional council’s decision-making process.

The absence of transparency diminishes public confidence and increases popular cynicism. Broad citizen engagement is one of the most effective ways of maximizing transparency. Ethiopian political parties and organizations, civic and grassroots organizations, advocacy groups and the independent press could play a decisive role in promoting and maintaining transparency in the constitutional dialogue and constitution making process. They could play important roles in educating and informing the public and by monitoring official activities to safeguard against manipulation and underhandedness by those entrusted with drafting the constitution. 

Kenya’s Constitutional Model for Ethiopia? 

Kenya’s constitutional reform in the aftermath of the crises in the 2007-07 presidential elections has been praised by various international organizations and governments. The Kenyans formed a “national unity” government before embarking on a constitutional drafting process. Most independent commentators have noted the inclusiveness and transparency of the constitution drafting process, the extensive consultations among stakeholders, the wide availability of constitutional civic education and the high level of civic engagement. The new constitution adopted in 2010 makes significant changes by imposing constitutional limits on executive power, replacement of powerful provincial governments with smaller counties, a citizens’ Bill of Rights and a landcommission to return stolen property and review past abuses, among others. The Constitution was approved by 70 percent of the Kenyan electorate. 

The Search of a Democratic Constitution and a Constitutional Democracy in Ethiopia 

The search for a democratic constitution and the goal of a constitutional democracy in Ethiopia will be a circuitous, arduous and challenging task. But it can be done! My views on the subject are pretty straightforward: A constitution is the supreme law of the land, which simply means that it is the fountainhead of all laws and all other laws in the land are subordinate to it. A constitution is fundamentally a limitation on government (not an empowerment of government). I think of it as the people’s iron chain leash on the "government dog". The shorter the leash, the better and safter it is for the dog’s masters. A constitution is also the sword that guarantees individual liberties and human rights against abuse by those exercising power. Only when those who are entrusted with the sacred duty of governance are put on a short leash and guarded by an independent judiciary wielding the sword of accountability will there be a true constitutional democracy in Ethiopia. 

Amharic translations of recent commentaries by the author may be found at:  

http://www.ecadforum.com/Amharic/archives/category/al-mariam-amharic           

http://ethioforum.org/?cat=24 

Previous commentaries by the author are available at: 

http://open.salon.com/blog/almariam/ 

www.huffingtonpost.com/alemayehu-g-mariam/

 

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