The Constitutionless Decade, 1974–1987: Rule by Proclamation

Thesis

For thirteen years between September 1974 and February 1987, Ethiopia had no written constitution in force. It was governed by proclamations of the Provisional Military Administrative Council, then by proclamations of its successor body the Provisional Office for Mass Organisational Affairs, then by proclamations of the Workers’ Party of Ethiopia after its founding in 1984.¹ During this period, the Derg nationalised rural and urban land, banks, factories, large commercial enterprises, and extra housing; conducted the Red Terror in which an estimated 30,000 to 150,000 Ethiopians were killed by state forces between 1976 and 1978; fought wars against Somalia (1977–78), the Eritrean People’s Liberation Front, the Tigray People’s Liberation Front, the Ethiopian People’s Revolutionary Party, the Oromo Liberation Front, and various other armed movements; conducted the 1984 famine relief and the controversial resettlement and villagisation programmes; and accumulated, by the time the 1987 Constitution was promulgated, the highest peacetime body count of any Ethiopian regime in modern history.²

That this happened in a thirteen-year constitutional vacuum is not coincidence. The thesis of this article is structural: a state operating without a written constitution and without any institution authorised to constrain its executive will produce a higher level of state violence than a state operating with even imperfect constitutional constraint, because there is no domestic mechanism to register dissent that the executive must hear. The constitutionless decade is the strongest available demonstration in modern Ethiopian history of what the absence of constitutional form looks like in practice.

Rule by proclamation

The Derg issued more than 350 proclamations between September 1974 and February 1987.³ They covered everything a state’s law normally covers — taxation, property, criminal law, family law, administrative organisation — and many things a state’s law normally would not cover, including the structure of the political vanguard, the conduct of mass organisations, and the targets of revolutionary discipline. They were drafted by various technical units, signed by the chairman of the Provisional Military Administrative Council (after 1977, Mengistu Haile Mariam), and published in the Negarit Gazeta.

There was no legislature. The 1955 Imperial Parliament had been dissolved by Proclamation No. 1. No replacement legislature was constituted until the National Shengo was established under the 1987 Constitution. The Derg’s Council of Ministers, formed in 1977 after the consolidation of Mengistu’s leadership, was an executive body, not a legislature. There was no judicial review of proclamations because there was no court empowered to conduct judicial review and no constitutional document specifying the standards by which review would be conducted.

There was no enumerated bill of rights. The Universal Declaration of Human Rights of 1948 was, in principle, applicable to Ethiopia as a UN member, but the Derg did not recognise it as binding on its internal decisions. Habeas corpus, due process, freedom from arbitrary detention, freedom of expression, freedom of assembly, freedom of religion — none of these existed as enforceable claims against the state during the constitutionless decade. The state apparatus that processed arrests, imprisonments, and executions during the Red Terror operated under no domestic legal framework that those subject to it could invoke.

This is what “rule by proclamation” actually means. It is not the absence of law in the colloquial sense — laws were promulgated, judges sat, courts decided cases under those laws. It is the absence of any framework above the executive’s law-making power that the executive could be held to. The law was whatever the council declared it to be on any given day. Citizens could be told that the law had changed and would be enforced from yesterday. Property could be nationalised without procedural recourse. Persons could be detained without charge for indefinite periods. The constitutional vacuum was complete.

The major proclamations

A selective inventory shows what rule by proclamation produced.

Proclamation No. 31/1975 (March 1975) — Public Ownership of Rural Lands. This single proclamation nationalised all rural land in Ethiopia, abolished the gult and rist tenure systems that had structured Ethiopian agrarian society for centuries, distributed user-rights to peasant associations, and ended the political dominance of the traditional landlord class.⁴ It was the most far-reaching social transformation in modern Ethiopian history. It was accomplished by one proclamation, issued by an unelected military council, with no constitutional process, no judicial review, no compensation, and no appeal. Defenders praise its egalitarian intent; its execution displaced hundreds of thousands of households and produced effects on agricultural productivity that the country has not fully recovered from. Whatever one’s view of the policy, the constitutional process was nil.

Proclamation No. 47/1975 (July 1975) — Urban Lands and Extra Houses. Companion measure for urban property, nationalising all urban land and any house beyond the family residence.⁵ Same constitutional process: none.

Proclamation No. 76/1976 (April 1976) — National Democratic Revolution Programme. Established the political framework of the Derg as a Marxist-Leninist regime, defined the categories of friends and enemies of the revolution, and authorised mass mobilisation against the latter.⁶ The Red Terror operated under the categories this proclamation established.

Proclamation No. 110/1977 (May 1977) — Special Decree on the Detention and Treatment of Counter-Revolutionaries. Authorised the kebele (urban dwellers’ association) cadres and revolution defence squads to detain individuals without warrant and conduct summary investigation.⁷ This proclamation provided the formal legal framework for the Red Terror’s operational machinery.

Proclamation No. 173/1980 — Commission for Organising the Party of the Workers of Ethiopia. Established the vanguard party that would, in 1984, be formally constituted as the Workers’ Party of Ethiopia. The constitutional implication is significant: the Derg constructed a one-party political framework before constructing the constitutional document that would authorise it.⁸ Constitutional form followed political fact, not the other way around.

Proclamation No. 239/1983 — Resettlement. Authorised the relocation of an estimated 600,000 people from drought-affected northern regions to the south and west of the country.⁹ Operationally the proclamation was the legal cover for what international observers later concluded was a humanitarian disaster: the resettlement programme killed an estimated 50,000 to 100,000 people, primarily through inadequate preparation and the rupture of subsistence economies, and was used by the Derg in part as a counterinsurgency tool against Tigrayan and Eritrean populations.¹⁰ Constitutional process: none.

This is a partial list. The full list contains hundreds more proclamations on matters of every scale. The pattern is what matters: the executive decided what would be done, declared it law by proclamation, and the apparatus of the state executed the decision.

The Red Terror

The Red Terror of 1976–1978 is the constitutional vacuum’s clearest evidentiary monument.¹¹ Between mid-1976 and late 1978, the Derg conducted a systematic campaign of killing against urban political opponents, primarily members of the Ethiopian People’s Revolutionary Party (EPRP) and the Marxist-Leninist Revolutionary Organisation (Meison) after Meison broke with the Derg in 1977. The killings were organised through kebele revolution defence squads, the regular police, and the security services. Victims were typically young — students, teachers, professionals — and were either shot on the streets, killed in detention, or executed in mass operations. The bodies were often left in public view, with placards identifying the dead as enemies of the revolution.¹²

Estimates of the death toll vary. The most cautious estimates settle around 30,000; the highest run to 150,000. Amnesty International’s 1978 report estimated 30,000 in Addis Ababa alone.¹³ The killings were not concealed; they were intended to terrorise. They could be conducted at this scale because no constitutional institution existed that the regime had to placate, no court existed that could issue habeas writs, no parliament existed that could demand explanation, and no press existed that could report what was happening except in the regime’s preferred terms.

The Red Terror is not the worst single episode of mass violence in modern Ethiopian history — the wars in the north killed more people over a longer period, and the famine of 1984–85 killed more people in a shorter time — but it is the most specifically political. Its victims were targeted for their political affiliations. The constitutional vacuum is what made this scale of political killing administratively possible. A regime that had to answer to even an imperfect court, or an imperfect parliament, or an imperfect press, could not have killed political opponents at this rate. The Derg did not have to answer to any of these. The constitutional structure that would have required it to answer did not exist.

The wars

The constitutionless decade was also a decade of war. The Eritrean independence war, inherited from the imperial period, continued throughout. The Tigrayan insurgency, led by the TPLF after 1975, escalated into a serious threat to government control of the north by the early 1980s. The Somali war of 1977–78, in which Ethiopia held the Ogaden against an invading Somali force with massive Soviet and Cuban assistance, killed tens of thousands. Internal counter-insurgencies — against the OLF in the south and east, against various smaller movements — added to the total. Estimates of total war deaths during the Derg years are between 500,000 and 1.5 million, depending on what is included.¹⁴

The wars are not strictly a constitutional question — wars happen under constitutional regimes too. The constitutional question is what oversight, what accountability, what limits existed on the conduct of the wars. The answer in the constitutionless decade is none. Conscription was conducted under proclamation without parliamentary authorisation. War-related taxation and emergency levies were imposed by proclamation. The conduct of operations, including the use of famine as a counterinsurgency tool in Tigray and Wollo in 1984–85, was determined by the council with no constitutional review.¹⁵ When wars are conducted with no domestic constitutional check, their costs in human life run higher than they would otherwise run, because there is no institutional voice the regime must hear that would moderate the conduct.

Why no constitution for thirteen years?

The most important question about the constitutionless decade is why it lasted thirteen years. The Derg did not lack the technical capacity to draft a constitution; it eventually produced the 1987 instrument with East German and Soviet assistance. Why did it take so long?

The answer is that the constitutional vacuum suited the regime. Mengistu’s consolidation of power within the Derg, completed by the killing of his rivals in February 1977, produced a small ruling group with no interest in constitutional constraint. The struggle for control of the political vanguard, completed by the suppression of the EPRP and then Meison, removed potential institutional rivals. The wars in the north absorbed political and military energy. By the time the regime was ready to produce a constitution — which is to say, by the time international and Soviet pressure made one tactically useful — it had governed for a decade without one and had developed habits of executive decision that no subsequent document was going to constrain.

The 1987 Constitution, when it came, was the formalisation of the existing reality, not its reform.

Steelman of the opposing reading

The honest defence of the constitutionless decade is twofold.

First, that the Derg inherited a state in collapse and could not have constructed constitutional institutions while simultaneously holding the country together. The wars, the famines, the ideological civil war between revolutionary factions — these were not conducive to constitutional drafting. To demand a constitution in 1975 or 1977 was to demand the impossible. This is partly right and partly wrong. It is partly right that 1975–77 was extraordinarily difficult. It is partly wrong because the Derg had ten more years after 1977 in which conditions were more stable than in 1975 — including significant military success against Somalia, partial consolidation of TPLF/EPLF positions, and Soviet-supplied resources — and did not produce a constitution. The “couldn’t” became “wouldn’t” rather quickly.

Second, that the proclamations of the constitutionless decade did real social work — land reform, literacy campaigns, mass mobilisation against feudalism — that the imperial constitutional order had been unable to do, and that the absence of a constitution should be measured against what was accomplished, not what was missed.¹⁶ This is a stronger argument than it first appears. Land reform was a real transformation. Literacy did rise. Mass mobilisation did break the back of the traditional landlord class. The reply is that none of these accomplishments required constitutional vacuum. They could have been pursued under a constitutional framework that also limited the Red Terror, restrained the resettlement programme, and provided procedural protections to citizens. The constitutional vacuum did not enable the social transformation; it enabled the violence that accompanied it.

Multi-causal accounting

The violence and dysfunction of the constitutionless decade are not attributable solely to the absence of a constitution. Marxist-Leninist ideology, Soviet-bloc military and intellectual support, the legacy of imperial state weakness, the climate-induced agricultural crises of 1973–74 and 1983–85, the structural problems of the inherited army, and the human characteristics of Mengistu and his inner circle all contributed. The constitutional vacuum is one cause among many, but it is the one cause that the regime could have chosen to address and chose not to. That choice is what this article exists to name.

What the article establishes

The thirteen-year period in which Ethiopia operated without any written constitution produced the highest peacetime body count of any modern Ethiopian regime, the deepest social transformation, the most expansive set of unreviewed executive decisions, and the most extensive use of state violence against political opponents. The connection between constitutional vacuum and these outcomes is structural: with no domestic institution authorised to constrain the executive, the executive faced no domestic restraint on what it would do. The 1987 Constitution that eventually replaced the vacuum did not introduce constraint; it formalised the practice that had developed in its absence.

The next article takes up that 1987 Constitution and what its Soviet form did not change about the Mengistu substance.

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References

Footnotes

1. The institutional sequence is documented in Andargachew Tiruneh, The Ethiopian Revolution 1974–1987, chs. 3–7, and Christopher Clapham, Transformation and Continuity in Revolutionary Ethiopia (Cambridge: Cambridge University Press, 1988). ↩

2. For the body count, see the discussion in Babile Tola, To Kill a Generation: The Red Terror in Ethiopia (Washington, DC: Free Ethiopia Press, 1989); Amnesty International, Ethiopia: Political Imprisonment and Torture (London: Amnesty International, 1995); and the Special Prosecutor’s Office trial records, 1994 onward. ↩

3. The full series is in Negarit Gazeta, 1974–1987. For a contemporary summary, see Fasil Nahum, Constitution for a Nation of Nations: The Ethiopian Prospect (Lawrenceville, NJ: Red Sea Press, 1997), 17–35. ↩

4. “A Proclamation to Provide for the Public Ownership of Rural Lands,” Proclamation No. 31/1975. See John M. Cohen, “Land Reform in Ethiopia: The Effects of the 1975 Reforms on Production,” World Development 7 (1979). ↩

5. “A Proclamation to Provide for Government Ownership of Urban Lands and Extra Houses,” Proclamation No. 47/1975. ↩

6. National Democratic Revolution Programme of Socialist Ethiopia, April 1976 (English translation in Marina Ottaway and David Ottaway, Ethiopia: Empire in Revolution [New York: Africana, 1978], appendix). ↩

7. Proclamation No. 110/1977, Negarit Gazeta. ↩

8. On the construction of the WPE and its relationship to the constitution, see Clapham, Transformation and Continuity, ch. 4. ↩

9. Proclamation No. 239/1983. On the resettlement programme, see Jason W. Clay and Bonnie K. Holcomb, Politics and the Ethiopian Famine, 1984–1985 (Cambridge, MA: Cultural Survival, 1986). ↩

10. Alex de Waal, Evil Days: Thirty Years of War and Famine in Ethiopia (New York: Human Rights Watch, 1991), 211–251. ↩

11. Babile Tola, To Kill a Generation; Lefort, Ethiopia: An Heretical Revolution?; Amnesty International, Human Rights Violations in Ethiopia (London: Amnesty, 1978). ↩

12. On the operational structure of the Red Terror, see Andargachew Tiruneh, The Ethiopian Revolution, ch. 5. ↩

13. Amnesty International estimates, 1978, cited in de Waal, Evil Days. ↩

14. The 500,000–1,500,000 range is widely cited; see de Waal, Evil Days, and the discussion in Gebru Tareke, The Ethiopian Revolution: War in the Horn of Africa (New Haven: Yale University Press, 2009). ↩

15. De Waal, Evil Days, 132–210, on the use of famine as a counterinsurgency tool. ↩

16. A version of this argument is made in Donald L. Donham, Marxist Modern, and in sympathetic accounts of Derg-era social transformation. ↩