The 2020 Election Postponement: A Constitutional Question Unanswered

Thesis

The June 2020 decision of the House of Federation to extend the terms of the federal and regional legislatures, by an act of constitutional interpretation rather than by constitutional amendment, is the most consequential constitutional event in the 1995 Constitution’s operational history. The decision was the immediate constitutional cause of the November 2020 outbreak of the Tigray war. It demonstrated the operational dependence of the constitution’s interpretive authority on the executive’s political needs. It established that the constitutional text could be supplemented by interpretive language not present in it, when the political circumstances required, without any constitutional institution constraining the supplementation. And it concluded the brief opening of the 2018 transition with the closure of the constitutional moment that the opening had created.¹

The article’s argument is that the 2020 decision is the clearest case in Ethiopian constitutional history of Schmittian sovereign decision-making on the constitutional exception. The constitution’s text provided no mechanism for election postponement; the executive identified four options for managing the constitutional crisis the postponement created; the executive’s preferred option was constitutional interpretation; the House of Federation, on the executive’s recommendation, issued the interpretation the executive wanted; the interpretation produced constitutional language that was not in the text. The decision was procedurally regular by the constitution’s standards. It was substantively, and recognised by constitutional lawyers writing about it at the time, the constitutional equivalent of finding language in a text that the text did not contain. The constitutional crisis the decision addressed was real. The way it was addressed was the most explicit demonstration in three decades that the constitutional order would, when tested, produce whatever the executive needed.

The crisis

The COVID-19 pandemic reached Ethiopia in March 2020, with the first confirmed case on 13 March. The National Electoral Board of Ethiopia, chaired by Birtukan Mideksa, announced on 31 March 2020 that the general elections scheduled for late August 2020 could not be conducted as planned under the conditions the pandemic was producing. The elections, which had been understood as the first competitive elections under the post-2018 framework and the test of whether the 2018 opening would translate into electoral substance, were postponed indefinitely.²

The postponement produced an immediate constitutional question. Article 54(1) of the constitution provides that “Members of the House of Peoples’ Representatives shall be elected by the people for a term of five years on the basis of universal suffrage and by direct, free and fair elections held by secret ballot.” Article 58 provides for the dissolution of the House and the holding of elections under specified conditions. Article 60 deals with dissolution by the Prime Minister. The constitution does not contain any provision that authorises the postponement of elections on grounds of public-health emergency, or the extension of the legislative term beyond five years for any reason.³

The terms of the House of Peoples’ Representatives, the House of Federation, the regional councils, and the executive bodies dependent on them (the Prime Minister and Council of Ministers, the regional presidents and councils) were set to expire in October 2020. If no elections had been conducted by then, there would be no constitutionally legitimate legislature, no constitutionally legitimate executive, no constitutionally legitimate regional governments. The political consequence of unmanaged constitutional vacancy could have been state collapse.

The four options

On 29 April 2020, the federal government, through the Deputy Attorney General, presented four options to the House of Peoples’ Representatives for managing the constitutional crisis the postponement had created:

Option 1: Caretaker government. The constitution does not explicitly provide for a caretaker arrangement, but some legal precedents and parliamentary practices were arguably available. A caretaker arrangement would have continued executive functions for a limited period (typically six months) until elections could be held. The objections to this option were that it lacked constitutional grounding and would not address the simultaneous expiry of the House of Federation and regional councils, and that six months might not be sufficient to manage the pandemic before elections.⁴

Option 2: Declaration of state of emergency. Article 93 of the constitution authorises declarations of state of emergency for limited purposes. The objections to this option were that Article 93 was designed for security emergencies, not public-health emergencies; that the state of emergency could not, on its face, extend the legislative term; and that the conditions for declaring emergency were not clearly met by a public-health situation alone.⁵

Option 3: Constitutional amendment. Article 104 of the constitution provides the amendment procedure: a two-thirds vote in both the House of Peoples’ Representatives and the House of Federation, with subsequent ratification by two-thirds of the regional councils. The objections to this option were that the amendment process was slow (potentially taking months), that the regional council ratification could be blocked by even a few dissenting regional councils, and that drafting and ratifying an amendment to handle the immediate crisis was unrealistic on the available timeline.⁶

Option 4: Constitutional interpretation by the House of Federation. The constitution provides that constitutional disputes are decided by the House of Federation (Article 83) on recommendation of the Council of Constitutional Inquiry (Article 84). The proposal was that the House of Federation could “interpret” the constitution to provide for the term extension. The objections to this option were that the constitution did not contain any text that could be plausibly interpreted to authorise term extension, that constitutional interpretation requires constitutional text to interpret, and that creating constitutional language where none existed was constitutional amendment under a different label.⁷

The federal government recommended Option 4. The House of Peoples’ Representatives voted to refer the matter to the Council of Constitutional Inquiry on 5 May 2020. The vote was contested: 25 members (mostly from the TPLF) voted against the referral, arguing that the constitutional text did not support the proposed interpretation and that constitutional amendment was the proper procedure. The TPLF position was that interpretation should be confined to ambiguous text in the constitution, and that creating new text under the guise of interpretation was constitutionally unprincipled.⁸

The Council of Constitutional Inquiry process

The Council of Constitutional Inquiry, chaired by the President of the Federal Supreme Court Meaza Ashenafi, convened over the following weeks. It held consultations with constitutional scholars, opposition political parties, and government representatives. Most of the substantive submissions argued against the constitutional interpretation option; the Alliance for Democratic Federalism, the Coalition for Democratic Federalism, EZEMA, the Oromo Liberation Front, and others issued public statements opposing the interpretation.⁹

The constitutional scholars who submitted opinions were divided. Some argued that the constitution’s text could not support the proposed interpretation; others argued that the principle of constitutional continuity (the state must continue to function under emergency conditions) provided an implicit constitutional basis for term extension; others argued that constitutional amendment was the only proper procedure. Adem Kassie Abebe, writing during the process, characterised the Council’s eventual reasoning as “fallacious, self-serving and deeply flawed… amounts to the CCI basically saying that ‘the Constitution must be interpreted this way because I said so!’”¹⁰

The Council issued its recommendation in late May 2020. The recommendation was that the House of Federation should interpret the constitution to extend the terms of the federal and regional legislatures for a period of “nine months but not later than one year” after the pandemic was determined to have been controlled. The interpretation was grounded in references to “constitutional principles” of governmental continuity, emergency, and fundamental rights — principles that the Council read into the constitution rather than drawing from specific textual provisions.¹¹

The House of Federation, on 11 June 2020, adopted the Council’s recommendation. The decision extended the terms of all federal and regional legislatures and the bodies dependent on them until elections could be held within the constitutional timeline the interpretation had created.¹²

The TPLF response

The TPLF, which had voted against the referral and had publicly opposed the interpretation, rejected the 11 June decision as unconstitutional. The TPLF’s position was that:

(a) The constitutional text did not authorise the term extension;

(b) The Council of Constitutional Inquiry’s reasoning was extra-constitutional in producing language not in the text;

(c) The House of Federation, dominated by Prosperity Party regional affiliates, was not constitutionally capable of issuing an independent interpretation against the federal executive’s preferences;

(d) The decision effectively converted the federal government into an unelected executive after October 2020 without constitutional grounding;

(e) The Tigray regional government, whose own term was due to expire in October 2020, would not recognise the decision as constitutionally binding on Tigray.¹³

In late August and September 2020, the TPLF organised the holding of regional elections for the Tigray State Council. The elections were held on 9 September 2020. Several Tigrayan parties participated (the TPLF won decisively; the Prosperity Party and the Tigray Democratic Party boycotted). The Tigray regional government claimed the elections as constitutionally valid and the elected regional council as the legitimate Tigray legislature after October 2020.¹⁴

The House of Federation declared the Tigray election unconstitutional on 5 September 2020 (before the vote took place, in anticipation), citing Article 9(1) of the constitution (supremacy and the requirement that all state acts comply with it). The federal government suspended budget transfers to Tigray, isolated the regional government diplomatically, and began the process that would lead to the Northern Command attacks on 4 November 2020 and the subsequent war.¹⁵

The constitutional question of which of the two interpretations was correct — the federal government’s June 2020 interpretation that extended legislative terms, or the TPLF’s September 2020 interpretation that the federal interpretation was extra-constitutional — was never resolved by any independent constitutional adjudication. The matter was, in operational terms, resolved by force of arms over the next two years.

Why the decision was Schmittian

The June 2020 decision is the clearest case in Ethiopian constitutional history of Schmittian sovereign decision-making.

Carl Schmitt’s framework: the sovereign is he who decides on the exception. The exception is the moment when the constitutional text does not provide a determinate answer to the constitutional question, and the sovereign must decide. The sovereign’s decision creates the constitutional resolution; the constitutional text follows the decision rather than the decision following the text.¹⁶

The 2020 situation fits the framework precisely. The constitutional text did not authorise the term extension. The Council of Constitutional Inquiry could not, by ordinary interpretive technique, derive the authorisation from the text. The decision to authorise the extension was, in Schmittian terms, a sovereign decision: the body with the authority to decide (the House of Federation, on Council recommendation, on federal-government request) decided that the constitution would mean what the political situation required. The constitution-as-text was supplemented by the sovereign-decision-on-the-exception.

This is what the series has been arguing about Ethiopian constitutional practice throughout. The 1974 Proclamation No. 1 was Schmittian: the new sovereign decided what the constitution would be. The 1987 abrogation in May 1991 was Schmittian: the new sovereign decided that the previous constitution was no longer in force. The 1991 Charter was Schmittian: the new sovereign decided what the new transitional constitution would be. The June 2020 decision is in the same series. The fact that no formal constitution was being replaced does not change the structure. The body with effective sovereign authority decided what the constitution meant in the exceptional moment.

The difference between the 2020 case and the earlier cases is that the 2020 decision was made by the existing constitutional institutions, operating within the existing constitutional framework, producing the appearance of constitutional process. The earlier cases were more obviously extra-constitutional. The 2020 case is the form Schmittian sovereignty takes when it operates through constitutional institutions rather than against them — which is, on the Schmittian framework, what sovereign decision typically does in mature constitutional orders.

The war that followed

The Tigray war that began on 4 November 2020 cannot be reduced to the constitutional question. The conflict had multiple causes: the TPLF’s resistance to the Prosperity Party reorganisation, the federal government’s strategic alignment with Eritrea against the TPLF, the personal animosities between Abiy and the TPLF leadership, the contested territories on the Tigray-Amhara border. The constitutional question was one cause among several. But the constitutional question was the cause that made the political conflict into a constitutional crisis.

The TPLF’s September 2020 election was the act that, on the federal government’s framing, made the Tigray regional government constitutionally illegitimate. The constitutional illegitimacy provided the framing for the November 2020 military operations. The “law enforcement operation” language used by the federal government from November 2020 onward — characterising the war as a constitutional necessity rather than a political conflict — relied on the June 2020 interpretation as constitutional grounding.¹⁷

The Tigray war is the subject of the next article. The relevant point here is that the constitutional question of the June 2020 decision was the immediate constitutional cause of the conflict’s framing. If the constitutional question had been resolved differently — through constitutional amendment with TPLF participation, through caretaker arrangement that did not implicate the regional councils, through some other process — the November 2020 outbreak might have been deferred or prevented. The constitutional choice mattered.

Steelman of the federal position

The strongest defence of the June 2020 decision rests on three arguments.

The first is the necessity argument: that the constitutional vacancy that would have resulted from October 2020 with no elected legislature was a real and serious problem, that the constitutional amendment procedure could not be completed on the available timeline, and that some constitutional resolution was required. Constitutional interpretation, on this view, was the only available option given the procedural constraints.¹⁸ This has weight. The reply is that the necessity could have been addressed by a procedurally more legitimate option — a constitutional amendment that, even if rushed, would have been constitutionally compliant. The choice of interpretation was not necessity; it was preference.

The second is the comparative argument: that other constitutional democracies have, during the COVID-19 pandemic, taken various extra-textual measures to manage the constitutional consequences of postponed elections, and that Ethiopia’s response was not exceptional by comparison. Many countries postponed elections; many countries extended terms in various forms.¹⁹ This is partly right. The reply is that other constitutional democracies that took similar measures generally did so under constitutional provisions that explicitly contemplated emergency, or with the active participation of constitutional courts that produced doctrinally grounded decisions, or through legislative measures that were subsequently subjected to constitutional review. The Ethiopian process did not include any of these elements.

The third is the outcome argument: that the June 2020 decision produced the practical outcome the country needed — continued government operation during the pandemic, eventual elections in 2021, no state collapse — and that the constitutional means by which the outcome was reached are less important than the outcome itself. This is partly right in narrow terms. The outcome of continued government operation was achieved. The reply is that the constitutional means matter for what they signal about future constitutional practice. The June 2020 decision signalled that the constitution can be supplemented by interpretation when the executive needs it to be supplemented. That signal has consequences for how future constitutional questions are addressed.

Multi-causal accounting

The June 2020 decision reflects (a) the COVID-19 pandemic and the practical impossibility of holding elections on the originally scheduled timeline; (b) the political conflict between the federal government and the TPLF, which made constitutional negotiation impossible; (c) the institutional weakness of the constitutional review apparatus, which could not produce an independent decision against the federal government’s preference; (d) the Prosperity Party’s dominance in the House of Federation, which made the political composition of the deciding body aligned with the federal executive; and (e) the time pressure of the October 2020 deadline. Each factor contributed. The constitutional choice was a choice made under constraints.

What the article establishes

The June 2020 House of Federation decision is the clearest case in Ethiopian constitutional history of Schmittian sovereign decision-making operating through constitutional institutions. The constitutional text did not authorise the term extension; the constitutional interpretation produced authorisation by reading principles into the text that the text did not contain. The decision was the immediate constitutional cause of the Tigray war’s framing as constitutional crisis rather than political conflict. The decision was procedurally regular but substantively the constitutional equivalent of finding language where none existed. It closed the constitutional moment that the 2018 opening had created.

The next article takes up the war that the constitutional decision precipitated, and the constitutional questions it raised about federation, secession, and Article 39.

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References

Footnotes

1. On the 2020 decision and its context, see Marew Abebe and Mekonnen Yoseph, “The Constitutionality of Election Postponement in Ethiopia amidst COVID-19 Pandemic,” Jimma University Journal of Law (2021); “COVID-19 and elections in Ethiopia,” SciELO, https://scielo.org.za/scielo.php?pid=S2077-49072021000100003&script=sci_arttext. ↩

2. NEBE announcement, 31 March 2020. ↩

3. 1995 Constitution, Articles 54, 58, 60. ↩

4. On the caretaker option, see Adem Kassie Abebe, International IDEA Constitution Building Programme statements, 2020. ↩

5. 1995 Constitution, Article 93; see analyses in Marew and Mekonnen, “Constitutionality of Election Postponement.” ↩

6. 1995 Constitution, Article 104; see Marew and Mekonnen. ↩

7. On Option 4 and its constitutional difficulties, see “Constitutional Silence on Election Postponement in Ethiopia,” LexForti, January 2021, https://lexforti.com/legal-news/election-postponement-in-ethiopia/. ↩

8. On the 5 May referral vote and the TPLF dissent, see contemporary reporting in Addis Standard, Ethiopia Insight. ↩

9. On the opposition statements, see “Opposition parties statement on election postponement,” Ethiopia Insight, May 2020, https://www.ethiopia-insight.com/2020/05/04/coalition-of-democratic-federalism-statement-on-election-postponement/. ↩

10. Adem Kassie Abebe and other constitutional scholars writing during the process; the quoted characterisation paraphrased from “Constitutional Silence on Election Postponement,” LexForti. ↩

11. Council of Constitutional Inquiry recommendation, late May 2020. ↩

12. House of Federation decision, 11 June 2020. ↩

13. TPLF public statements June–August 2020. ↩

14. On the September 2020 Tigray election, see Freedom House Ethiopia 2021 report; “Ethiopian Politics - Election 2020,” Global Security. ↩

15. On the House of Federation’s 5 September declaration, see “House of Federation declares Tigray region vote as unconstitutional,” Ethiopia Observer, September 2020, https://www.ethiopiaobserver.com/2020/09/05/tigray-region-vote-unconstitutional-house-of-federation-says/. ↩

16. Carl Schmitt, Political Theology, ch. 1; Constitutional Theory, Part I. ↩

17. For Abiy’s framing of the conflict, see his addresses to the House of Peoples’ Representatives, November 2020. ↩

18. The necessity argument has been made in official statements and in some sympathetic analyses. ↩

19. For comparative analysis of COVID-19 election postponements, see Adem Kassie Abebe and International IDEA, Direct Democracy and the Coronavirus Pandemic (2020). ↩