When Constitution Lacks Legitimacy In The Making The Case Of Ethiopia

As O. Okoth-Ogendo, a constitutional author, pointed out in his bold terms, a constitution is: “Arnpower map’’ upon which the framers may delineate a whole set of concerns which may range allrnthe way from an application of the Hobbesian concept of ‘the covenant’, to an authoritativernaffirmation of the basis of social, moral, political or cultural existence including the idealsrntowards which the policy is expected to strive.” Hence constitutional-making, is a process whichrn“involves, inter alia, making choices as to which one of those concerns should appear on thatrnmap.rnThus, how this choices made, would necessarily affect some positively and others negatively --rndepending on how they involved on the making of the choice. Unlike the traditionalrnconstitutional making which used to consider the constitution as an act of “completion,” modernrnconstitutional making focus on participatory and conversational “new constitutionalism.” Todayrnthere is such a virtual consensus that a constitution should be made democratically. Thernunderstanding now prevails that constitutional process is democratic; as long as it isrnparticipatory and all-inclusive in each stage preceding the final document.rnConstitution-making as it involves “essentially the distribution of power,” the way constitutionsrnmade, as well as its substance, is of crucial importance in the political and governancerntransitions of every polity. Particularly for polities in short of national consensus, thernparticipation of all the political, ethnic and socio-economic groups in this power distributionrnagenda fosters and strengthens in all of them the awareness that they are part of the same polity.rnIt endorses and sustains their feeling of “sense of commonality” i.e. “the sociological claim ofrn‘We’ that defines a people.” This legitimacy ---- the sense of “We” minimizes the threat to thernpolitical stability. Accordingly, if it is properly organized, given adequate attention andrnresources, constitution-making can therefore transform societies from the worst to the better,rnotherwise to a continued unrest. These are among the lessons that are drown from an ongoingrnstudy that has been conducted over the past several years by the United States Institute of Peacernon constitution making, peace building, and national reconciliation. Through an examination ofrn17 case studies of constitution-making processes around the world, which have occurred overrnthe course of the last 25 years, focusing primarily on post-conflict transitions, the study attemptsrnto assess the constitution-making process for its potential for conflict resolution and preventionrnas well as for the maintenance of stable peace. To date, this review by a wide range of expertsrnstrongly suggests a basic message perhaps more so than at any previous time in history, thernprocesses by which constitutions are made matters.rnThe question, however, is what if nations have failed to ensure democratic constitution in time ofrnthe making. What should be the position the political actors need to hold in curing this defect ofrnthe constitution?rnComing to the experience in Ethiopia, those figurative political actors to whom I interviewedrnbelieve our Constitution has come with no due and proper consultation with the whole stakernholders. As a result, they labeled the constitution as EPRDF’s party program, which they believernit had dominated the whole constitutional-making process. In consequence of this, they don’trnshow a commitment to the constitution and the political institutions established within thernconstitutional framework. Furthermore, while some have stated “constitutional change” as onernaspiration in their political struggle, others listed dozen of provisions for constitutionalrnamendment including those which defined the present Constitution. Rebel fronts and thoserngroups branded as illegal actors are also among the prominent groups which aspire forconstitutional change. This is even true of among oppositions that are now acting on homernpolitics. While constitution is supposed to be an everlasting document, at least to a considerablerntime, the Ethiopian constitution has such a clear of danger of turnover. As long as the EPRDF,rnthe only party which believe the constitution is democratic, will not rule the country forever; it isrninevitable the constitution will be changed with a change of the existing government.rnParticularly in countries like Ethiopia where political affiliation is directly related with ethnicrnlines, it is hardly a constitution to live generation after generation. Such kind of stance, thernwriter argue, would rather make the democratic process to remain in catch.

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