Analysis of the unique feature of the SNNPR constitution with the FDRE constitution

Save the constitutions of Oromia and Tigray, the remaining seven sub-national constitutions were adopted after the promulgation of the federal constitution. Accordingly, the first SNNPR constitution was adopted in 1995 as per the authorization it gets from Art 50(5) and Art 52(2) (b) of the federal constitution. This constitution was active until it was finally replaced by the revised SNPPR constitution of 2001. As it holds true for other regional constitutions, the revision was the need to constitutional zed principles of separation of power, accountability and transparency in government acts, to organize the structure and administration of state in a way that can facilitate local government, and to create a situation that eases socio-economic development in the region. At the same time, it should also be noted that there are scholars who argue that the reason for the revision of sub-national constitutions is the internal problem of EPRDF. Whatever the case, starting from the inception of a federal system in Ethiopia SNNPR adopted only two constitutions.

This article tries to analyse the unique features of the SNNPR revised constitution and compares this with the FDRE Constitution.

1. Unique features of SNNPR revised constitution

 Bicameralism

Sub-national level bicameralism is the case in some federal countries. It is more rarely found in sub-national legislatures, although there are notable exceptions. Among them, forty-nine American states (all except Nebraska), five Australian states (all except Queensland), five Indian states (out of twenty-five) and eight Argentine provinces (out of twenty-four) split their legislative assemblies into two houses. This four-country set account for nearly one-sixth of the twenty-three countries that feature sub-national legislatures, thus half the proportion that bicameralism represents among national assemblies. Hence, sub-national bicameralism is an infrequent phenomenon and less common. Even though some countries followed bicameralism at the sub-national level, its composition, power and function, purpose and modes of representation is frequently unlike the federal bicameral.

The 1995 Ethiopian constitution states that the State Council has the power of legislation on matters falling under State jurisdiction. By looking at this article, we cannot conclude either second chamber can be established at the sub-national level of the country or not. But article 52(1) (a) allows for the state to establish a state administration that best advances self-government, a democratic order based on the rule of law; to protect and defend the federal constitution. Therefore, the power of the regions to design and adapt their own constitutions is a power allotted to them by the federal constitution, offers an excellent opportunity for the accommodation of this intra-regional ethnic diversity.

In Ethiopia, among nine regions, the SNNPR established its own clear second chambers; Harari made one council comprised of two types of representation and the Amhara region made a council of nationality without the status of chambers. Hence, the SNNPR is the only region that experiences federalism within Ethiopia federal system, that established the lower house is state council (in which members are representing peoples of the state as a whole) and the upper house, the CON (in which members are representing their own respective ethnic group), which established by modelling the federal House of the federation. Therefore, All regional states, except, the SNNPR, does not have a bicameral legislature and this feature makes SNNPR subnational constitution unique from other unites of the federation.

Constitutional interpretation

The constitution of SNNPR establishes a CON as a second chamber in which NNPs are represented at the state level. Since the region is established by the consent of NNPs of the region and they are the bearer of the sovereign power of the region, this house is serving as a place wherein which they are showing their representation with the intent of winning and striving for their own right and at the end exercise the right to self-determination. Hence, this house is empowered with the interpretation of the constitution that reflects the sovereignty of the nations. In this house, all nations will be represented at least by one member and on the basis of one million populations, represented with an additional one member. This house is used as a symbol, which, differentiate the SNNPR, as a federation within contemporary federal Ethiopia. Therefore, SNNPR does have a unique feature in this regard.  According to art 59 of the SNNPR constitution gives us an inference that the council entrusted with the power of constitutional interpretation and adjudicating the constitutional dispute, which is the power of HOF at the federal level

• Legislative power

Under the SNNPR constitution the legislative assembly of the sub-regional unit governments, the Council is the highest body which is composed of directly elected by the people and members elected from the State Council representing the units. The term office of the sub-regional Council is limited to five years. In accordance with Art 81(3) (c) of the constitution, residual legislative power in the region is granted to this council, though it is not clear as to how they exercise their residual legislative power and its status with the regional constitution, at least on those matters uncovered, the conjunctive reading of Art 80(2) and Art 81(3)(c) empowers their respective legislative councils to enact laws. In fact, one may infer a certain limitation on the provisions mentioned which stipulates ‘without prejudice to the powers and functions vested on the State Council …that are consistent with the State and Federal laws.’ From this, it is sound to expect that there will be an overlap of powers and functions when practically either of the layers exercises certain activities. Therefore, the SNNPR constitution is unique and impressive in relation to self-governments issues even including legislative power. 

• Recognition of Official working language to the sub-regional administration

The other salient feature of the SNNPR constitution is the great emphasis it gives for self-rule by establishing sub-regional administration. This goes to the extent of using their language as a working language on their administrative circle. The self-administration power of Zones (Liyu Woredas) gives them the discretion to come up with determining the working languages of the Zone or the Special Woreda. This is different from the stand of other sub-national constitutions, which incorporated one working language region-wide. 

• Self-determination

As stated under Art 45(2) of the Revised Constitution of SNNPR envisages that each ethnic group in the region have the right to establish their own Sub- Regional Units which are dubbed as Zones and Special Woredas governments.  Here, there is one thing required to bear in mind that, in addition to the discretion it gave to the sub-regional government to take self-rule measures, the SNNPR under article 39(6) of the constitution guaranteed local administrations to form a sub-national government. This right is unique for southern region nations, nationalities and peoples and no similar protection is provided in the other sub-national constitutions. It seems that other regions refrain from guaranteeing this same right to maintain regional integrity.

Moreover, one interesting thing in relation to the question of self-determination, the decision of the Council of Nationalities may or may not be final. Once a particular ethnic group lodges a complainant before the Council alleging that its rights to self-determination right, as incorporated under Art 39 Regional Constitution, and if they are not satisfied with the decision of the Council, there is also a possibility to file an appeal before the HOF pursuant to Art 59 (3). In this regard, the constitutions seem to concede with Art 20 of Proclamation No 251/2001 which stipulates ‘essentiality of exhausting remedies’ from the concerned state a principle which never envisaged under the federal constitution except for the quest of statehood. However, in all other cases, the decision of the Council would be a final one concerning its matters. 

• Constitutional Amendment

The SNNPR constitution under article 125(2) stipulates that basic principles of the constitution are not amendable until the FDRE constitution chapter three is amended. Here what makes this constitution so unique is that part two and three of the constitutional amendments is totally dependent on the federal constitution chapter three amendments. Plus it adds special procedure amendments for the basic principles of the constitution.

• Recognition of the types of executive federalism

One striking thing to mention is the constitution endorses what we call ‘executive federalism’ under Art 66(1) by imposing the duty to implement federal laws and policies, without even indicating if the federal government request so, over the regional executive branch in addition to performing its regional domain.

• Minority protection

The constitutional mechanism available to protect ethnic groups, often minorities, thus can be said into two broad forms. First, they could exercise through using the federal constitution which broadly recognizes different rights in general terms. Second, they could further assert through the regional constitutions which are supposed to engulf distinct measures particular to their respective status quo. In this regard, the SNNPR constitution seems shiny because it had devised mechanisms of special representation of minority nationalities in the legislative organ so that to compensate for the possible side-effects of the electoral system.

In addition to this, Under Article 59(7) of the SNNPR constitution, it envisages the participation of ethnic groups in the amendment of the constitution either through the State Council and Council of Nationalities, who are vested with such power, for those ethnic minorities who do not yet have their own sub-regional entities or through their sub-regional councils who partake in the process for those who already established their respective entities. And this would be the best mechanism to give an opportunity for those ethnic groups who do not yet have their own sub-regional units. Therefore, it is possible to say that the Revised Constitution of SNNPR, on the contrary of other sub-national constitutions, provided a clause on guaranteed protection of ethnic minorities.

To sum up, relative to other sub-national constitutions in Ethiopia, the constitution of SNNPR is a bit different in that the provisions of Ethiopian regional constitutions have substantial similarities with the federal constitution. This happens due to the fact that are different self-ruling ethnic groups that make up the southern region. The constitution should have been designed in a way that can accommodate regional integrity and ethnic diversity among such groups.

2. The difference between SNNPR revised constitution and the FDRE constitution

• The difference with regard to the second house

As far as comparing the two houses concerning, we will make it based on the elements of composition, mode of selection, purpose, power and function. Here, in order to be in line with the question given in this part of the paper, I will focus on the point of difference then I will try to summarize their similarity.

On the basis of selection, in the case of CoN, the model is only restricted to indirect selection and this is clearly enshrined under Article 58(3) of the SNNPR constitution. Hence, there is a difference between the two houses on the mode of selection; the HoF can use both direct and indirect selection modes. But to the contrary of this, the CoN uses only the indirect mode of selection. This may lead one to the conclusion that the members of the council of nationalities may not have the courage to run the pure interest of the nationalities they represent against the interest of the regional parties, by which grace they are selected.

When we come to the power difference, it is clear that one of the powers vested for the HOF is solving solutions for interstate conflicts as well as conflicts between the federal government and the regional states. The procedure that is designed for the resolution of conflicts of interest is unspecific and it emphasizes the organization of discussions between the concerned parties. However, the CoN is only empowered to making studies on neighbouring disputes and interregional boundaries and decides on intra-regional dispute boundaries. The power regarding to solving conflict is stipulated in two ways; i.e. the intra-state conflict and the inter-state conflict with the region. In case of intra-state (conflicts between the various administrative levels), the council has the power of searching possible solutions for the encounters and in case of inter-state conflict (conflicts between neighbouring states and for conflicts about the delimitation of borders), the council has the power to study and bring the case to the HoF attention. In both cases, the council has no significant role other than studying and searching for solutions.

Furthermore, the HoF have the power to shares out federal and federate tax revenues, as well as subsidies that are paid to the states by the federal government; order the federal government to intervene in any state, which violates the Constitution or jeopardizes constitutional order. However, these powers are not granted for CoN. It has no power to discuss the allocation of budgets for zones and special weredas and institutions of the state and is not empowered to order the intervention of the regional special force to zones and weredas.

To sum up, In SNNPR state, the upper house, CoN, is made and resembles the federal HoF. When we compare both, they are similar in composition, representation, on the initiation and amendment of the constitutional revision process, in promoting equality between the peoples and consolidate their unity based on their mutual agreement and with the assist of CCI, interpreting the constitution. Contrary, those two houses are deviating from the allocation of budgets, on ordering intervention of the security forces, the power to decide questions concerning the right of self-determination of NNPs, mode of selection of members, on the issue of putting solutions for the conflict.

• Self-determination issues difference

With regard to self-determination issues, the HoF has the power to decide all questions concerning the right of self-determination of NNPs, including the right to secession. However, the CoN is entertaining cases concerning the claim of NNPs to have their own Zonal, Special Wereda and Wereda administration. At this point, the regional constitution notably deviates from the federal constitution. The HoF will entertain the case of self-determination to the extreme of secession. Contrary, Art. 59(3) of the Southern constitution restrict the CoN power to look at self-determination cases only to the extent of the right to create a Zone, Special Wereda or Wereda. 

• Constitutional amendments difference

Concerning the issues of constitutional amendments, it is obvious in the FDRE constitution which stipulates special amending procedure for the fundamentals right stipulated under chapter three of the text in article 105(1) of the constitution.  Unlike the federal constitution, the SNNPR constitution entrenches basic principles of constitution as unamendable until FDRE constitution chapter three is amended. Therefore, SNNPR constitution along with the fundamental rights also recognizes a special amending procedure for the basic principle of the constitution under its amendment clause in Art 125. And this can be taken as a prominent achievement towards upholding the values of constitutionalism inclusive of democracy and human rights as long as it makes stable and rigid at the same time.

• Differences in types of federalism recognized

According to article 50(2) of the FDRE constitution, it is clear to infer that Ethiopia follows dual types of federalism since there are clear distinctions among the three organs of government between the federal and regional governments. But to the contrary of this,  the SNNPR constitution under Art 66(1) by imposing the duty to implement federal laws and policies over the regional executive branch in addition to performing its regional domain. So that this clearly indicates that even if the FDRE constitution recognized dual types, the regional constitution leaves this behind and opt for the executive federalism one.

• Minority right protection difference

However the SNNPR constitution had devised mechanisms of special representation of minority nationalities in the legislative organ, it does not put outer-limit or maximum representative number in the same fashion as the federal counterpart does.

Concerning these issues the constitution of SNNPR does not specify the maximum or the minimum number of seats reserved for the ethnic minorities nor does it indicate how the special representation schemes are going to be implemented. But to the contrary of this, the FDRE constitution under article 54(3) guarantee 20 seats for the minority nationalities out of 550 total seats. With relation to this, since the SNNPR constitution does not define minority nationalities it is hard to assert who qualifies for such representation when one notes the fact that the region is diverse in ethnic minorities. Besides, its permanent protection does not seem to warrant it since the determination is left for the will of the regional government that might be controlled by other groups with relative majorities. Taken together it might have an adverse impact on the interests of ethnic minorities in legislative decision-making which only requires a majority vote in carrying out its powers and function.