The phraseology of special interest is technical employment. The geographical location, historical, socio economic underpinnings and legal grounds attract the attention of ONRS and Oromo people. These grounds inspire them to know about the City and special interest. The Constitutional Special Interest is not only ethical, political or legal issue but it also involves the identity of the People, indigenous people are the foundation. It is, therefore, a particularistic interest recognized and guaranteed, almost the same, when the Constitution comes into scene. It is particularistic because it is of a single state interest that it shares with no other constituent regional states.
Today, we do not watch concrete job being done to implement the interest and things are left in limbo. After the enactment of the Constitution two Charters, Proclamation, (Proc.) No. 87/1997 and 361/2003, have been issued for the City. However, both of them have failed to state the relationship between ONRS and AACA along with the Constitution. Though both Charters empower the City government and Federal government to reach an agreement with the Region, this has not yet been materialized. For the people, therefore, the past decades have meant a major loss of control over special interest. They are the gate keepers, of success or failure to husband their interest.
CONCEPT OF STATE INTEREST
Even after decades of talk about the political safeguards of federalism, there is a lot we do not know about the formal even informal ways in which states’ interests influence parliamentarian decision making. What seems clear, however, is that there are avenues of influence, often very strong ones.
“The true essence of federalism is that the states as states have legitimate interests which the national government is bound to respect.”
The first quote implies strong state up to influencing the parliament with regard to its interest even when there is tough influence while the second one implies the obligation of the central government to respect the interest of state. Both are modes of safeguarding state interest which are qualities of federalism.
On any particular policy issue, interests may be perceived by all states (universal), or by group of states (categorical), or by one state only (particularistic). Universal state interest is the institutional preferences that all states perceive vis-à-vis the federal government. AAC being the capital city of the FDRE, Nations, Nationalities and Peoples, all states are impliedly interested in general status of the City, Art. 49(1) of FDRE Constitution.
A particularistic state interest is perceived either by a single state or by different states in different ways. Accordingly, a single state has specific special interest or different states have different specific special interest. A single state government perceives an interest that it shares with no other state government. The interest of ONRS in AAC falls to particularistic state interest, the Constitution is too specific to mention State of Oromia.
GROUNDS OF SPECIAL INTEREST
Social, Economic and Historical Grounds
The present AAC had/has original Afan Oromo name- ‘Finfine,’ attests the abundance of hot springs at the heart of the City.
The area was solely inhabited by Oromo clans of Gulale, Eekka, and Galan Abichu and was divided into 12 counties or districts; each county was being administered by the local clan chiefs like, Tufa Muna, Duta Harra, Jimma Jatani, Guto Wasarbi, Jimma Tikse, Abebe Tufa, Ware Golole, Tufa Araddo and Mojo Botora. The history of former ‘Finfine’ shows Afan Oromo naming for each re-named sites. To mention, Genda Sokoru, Genda Sulula Garbi, Genda Garbi, Genda Hurufa Rare, Genda Kersa, Genda Boru Korma, Genda Burayu, Genda Golba, Genda Adami, Genda Didimtu, Genda Qalle, Genda Fiche, Genda Karra, Genda Harbu Irrecha, Genda Dire Arara, Genda Burka Ejere, Genda Beda Ejersa, Genda Ruma, Genda Doka Bora, Genda Bole Bulbula, Genda Birbirsa, Genda Kersa, Genda Dhoke Bore, Genda Lubu, Genda Oda, etc.
During the late 18th and early 19thC, the neighboring Amhara community were wedging incessant predatory raids and looting expeditious against Oromo people of Macca and Tulama clans. Some of these raids were documented by Major W.C Harris, a British diplomatic mission in his book, ‘The Highlands of Ethiopia, (1844).’ Consequently, the Oromo people’s relation with AA has been minimized due to expansion or invasion carried out by previous regimes.
Even after the recognition, another historical incident was that of the 2001; when the governing party passed resolution to move the capital of ONRS from AA to Adama, Art.6 of Revised Constitution OF ONRS, Proc. No. 46/2001. The resolution was unanimously opposed by the Oromo people from all corners. The opposition parties, having foreseen that the resolution will be repealed, speculated that the move was intended as a way to split them among ethnic lines by inciting the non-Oromo residents of AA to oppose the return of the ONRS to the Ethiopian capital city. In 2005 election, the party officially announced plan to move the Region’s capital back to AA, Amendment proc. No.94/2005, Art. 2(3) provides ‘Finfine’ as the capital city of the Region. In any event, non-Oromo groups did not oppose the return of ONRS office to AAC. Despite a step to amend the Regional Constitution, administrative power at the top is still taken by Federal Government.
For the fact that historically Oromo people found out and lived in the City, the latter has social, economical and historical value for the former. Therefore, Oromo people are the accepted owner of the City from the early time immemorial.
Geographically, AAC is surrounded and engulfed within, (written in italic to emphasize the Constitution), Oromia. According to Ato Abebe Fixe, AAC being geographical center and heart of ONRS is one basis of the recognition.
That is why the Constitution mentions, “The special interest of Oromia state…arising from the location of AA within state of Oromia…would be respected (written in bold for emphasis).” To use these words, location and within, are the geographical reaffirmation. Due to the geographical coincidence of the location of Oromia with AACA, the Constitution includes a preemptive solution for potential conflicts that could arise between the two.
The establishment of Special Zone of ONRS Around Finfine at the peripheral outskirts of the City is misrepresentation of this fact, the fact that the City is/has been part of the present Region and the present action is the move to a new era. There is nothing legal reason to name “Special Zone”. Leave alone the theme of this study, if it is admitted that AA is the land of Oromo, seat of Regional Administration, it is self defeating step to establish what is called “Special Zone”. Further, the Integrated Development Plan, commonly called Master Plan, 2013, which extends 40 – 100 km radius around Addis Ababa obscured the interest. It has no objective of the Constitution, nor harmonizes the already existing land use plan prepared by the Region in 2009.
The recognition is in line with International Bills of Human Rights and regional human rights instruments to which Ethiopia is a party. Art. 2(1) of International Covenant on Civil and Political Rights and International Covenant on Economic, Social and Cultural Rights reads:-
“Each state party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other grounds.”
Further, common Art.1 reads:-
“1. All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development.
2. All peoples may, for their own ends, freely dispose of their natural wealth and resources without prejudice to any obligations arising out of international economic cooperation, based upon the principle of mutual benefit and international law. In no case may a people be deprived of its own means of subsistence.”
A related provision of African Charter on Human and Peoples Rights under Art. 2 also says:-
“1. All people shall freely dispose of their wealth and natural resources. This right shall be exercised in the exclusive interest of the people. In no case shall a people be deprived of it.
2. In case of spoliation the dispossessed people shall have the rights to lawful recovery of its property as well as to an adequate compensation.”
To match the term ‘people’ under these international instruments with ‘Oromo People’ under the Regional Constitution the instruments do not define the term ‘people’. What is aimed to do is to establish a link between the inalienable rights of human person and of people in contextual manner in societies with different political, social and cultural backgrounds. The preamble of the Charter under paragraph 6 is a complementary concept. A further purpose of appealing to these legal regimes is to lean the concept of self-determination in once territory with the recognition made under the FDRE Constitution and the Revised Constitution of ONRS, Arts. 39, 40 and 41 in addition to explicit provisions dealing with City. The recognition under the Constitution, therefore, is the due effect to and in line with the instruments, knowingly or not.
According to Proc. No. 94/2005, a proclamation issued to amend The Revised Constitution, Proc. No. 46/2001, Art. 2(3), “Art. 6, (Adama shall be the capital city of ONRS), has been amended as, Finfine shall be the capital city of ONRS,” (bracket added). It may be considered that AA being capital City of ONRS contributes legally to the furtherance of special interest. It also creates a loophole of what constitutes joint administrative matters. The immediate reason of revision is, however, a political cover as a means to delay or it is not to fully enforce the Constitution.
RECOGNITION OF ‘SPECIAL INTEREST’
While bringing the Constitution into scene the framers used a technical and sensitive phrase ‘special interest’.
Black’s Law Dictionary attaches the following meanings to the terms of the Constitution.
“Special: of relating to, or designating a species, find or individual thing; of status, rule designed for a particular purpose, unusual extra ordinary.”
“Interest: a legal share something, all or part of a legal or equitable claim to or right in property. Collectively, the word includes any aggregation of right, privilege, power or immunity.”
The phrase is purposive. It is particularistic extraordinary. It constitutes right, privilege, power or immunity relating to species or individual thing; of statute, rule designed for particular purpose.
In the Proclamation to provide for the Establishment of National/Regional Self Government, Proc.No.7/1992, it was mentioned that the special national and political interests of the Oromo are reserved over regions 13, Harari State and 14, Addis Ababa. The recognition has been blistering discussion during the drafting of the FDRE Constitution. There were differences in opinions:-
Ato Mulugeta G/hiwot, Nations, Nationalities and Peoples’ Right Committee Secretary, said even though the City is not recognized as units of federation, residents have got rights of self-determination of self-governance, being accountable to the Federal government. In addition, for AAC being within ONRS, things of calling for interaction; a lot of services provision and usage of natural resources causing perhaps conflicts of interests and hence, to solve these conflicts the recognition of special interest and necessity of detailing law is inevitable.
Then, Ato Adamu Degefu, from former Region 14, said when the city develops it is not for few, rather it would be for Nations, Nationalities and Peoples, the common estate, the inclusion of Art. 49(5) may further include interests in tax and revenue collection and such sub-article is not fair and has to be deleted.
Further, Ato Demeke Mekonnen, member of Nations, Nationalities and Peoples Committee, affirming the position of Secretary of the Committee argued in favor of the recognition.
Ato Tesema Gadissa, from Region 4, regarding the inclusion of Art. 49(5); said AA being the palace of Nations, Nationalities and Peoples, where continental and international issues are accustomed is not disputed, and the location of the City is of the Region and the dared others to know the history. Further, he added, AAC being the capital of ONRS except where the executive body of the Region decides otherwise, with regard to the City’s expansion it is necessary to have relation-some dealing with the region; hence, should include all such interests; the article has included the heartbeat of all Nations, Nationalities and People and has to be approved.
Again Ato Mulugeta G/Hiwot said, it seems important point that AAC is for all and its development is for all, but could not be in general and it is clear that for City’s development ONRS faces negative externality as we hear from the media.
Ato Abat G/tsadik hardly understands whether provision of social interest, utilization of natural resources, and administrative matters are really special. More, he is not clear whether these elements of interest are equally special. It is all about factual reconciling recognition if special interest is acknowledged, he added.
The interest of ONRS in AAC is special relative to the interests other states have. The technical usage of special interest connotes beyond ordinary interest, the latter being the interest of all nine National Regional States, the City being the capital of all Nations, Nationalities and Peoples of Ethiopia, Art. 49(1) of FDRE Constitution. Because when the Constitution refers to ‘… Ethiopia’ it includes by default the nine regional states, Arts. 39(5), 45, 46, 47. Hence, the Constitution uses ‘special interest’ in a relative meaning.
ELEMENTS OF SPECIAL INTEREST
Provision of Social Services
The combination of social services in which government plays a role as purchaser and/or provider, may be sorted into activities:-
The core functions of law, order, income support and redistribution; defense and other public goods; merit goods, services that society believes individuals should have access to at uniform price and without the usual market constraints such as having the service cutoff if payment is not made on time.
The provision of social services to be assumed by ONRS in AAC, sectors of peace keeping, water, the interactions in health, education, road and transportation sectors are by far limited to informal exchange. It is common to see using wood and other traditional means to cook food and also for light in the peasant associations adjoining the capital. This indicates weak adroitness by the Region in facilitating rural electrification to the surrounding people. By similar token, due to the absence of transport route except the inlet outlet, to and from AA, it is common to see the people found nearby the City using traditional means to transport goods to and from AA. Regarding education, since Amharic is legally imposed as a single national media, students, mainly those from Oromia, are facing difficulty as their mother tongue is Afan Oromo.
It is logical to assume that any epidemic occurred in either governments can spread to the other. No joint plan or readiness to combat epidemics jointly. At least, an epidemic occurred in 2009, Ethiopian summer, could be practical lesson to combat trans boundary epidemic diseases.
Again, without ignoring some latterly started activities such as peace keeping, drinking water, and acquisition of land for various constructions of ONRS, the joint meeting of higher officials of the two governments admitted that they are very low in comparison with what are supposed to do.
Utilization of Natural Resources
Currently, there are a number of firms engaged in industry and other activities in AA. These firms have major roles in producing industrial waste, so as in polluting rives and environment. This contrasts with people’s right to clean and healthy environment, Art. 44(1) of the FDRE Constitution. Historically, rivers have been the most vulnerable for industrial and municipal wastes on one side, and source of water for various purposes. Contaminated water ranked third of all death causing factors and water related disease counted for 80% of all disease in developing countries. It is usually mentioned that movement of water and air transporting waste materials and dust particles is not limited or bound to boundaries.
As per a study conducted by ONRS’s Land and Environmental Protection Bureau, downstream users of Akaki River indicated new health problems. Because, most of the industries in the City are found on the rivers courses and virtually all of them discharge their waste mainly to rivers. Physically observable, the rivers are border crossing carrying the waste.
With regard to water resources for AAC, the vicinity areas of ONRS have paramount role. According to the data obtained from AA Water and Sewerage Authority, Gefersa Dam since 1944, Lega Dadhi Dam since 1970, and its extension, Dire Dam since 1999 are the major surface water sources to the City. The surface water and even recently drilled ground water does not quench the demand of the City; of total demand, only 60% is covered; Ato Getachew Eshete, and Ato Fekadu Asrat.
Therefore, mainly in this regard, the practice is not the implementation of the Constitution. The practice reflects the continuing denial of Oromo rights of benefiting from natural resources found in the City, and assumes only the City can exploit the resources of the Region, not vice versa.
Joint Administrative Matters
It is clear that AAC residents have been given right to self-governance, Art. 49(2) of FDRE Constitution. It is clear that AAC is capital city of FDRE, Art. 49 (1). ‘Finfine’ is also the capital city of ONRS when constitutional catalogue of ‘joint administrative matters’ is openly interpreted, Arts. 49(5) of FDRE Constitution cum 2(3) of Proc. No. 94/2005 of ONRS Revised Constitution. Under Art. 33(2) of the first Charter of AACA, Proc. No. 87/1997, Oromia has been given the right to make the City its capital city. This creates the upshot of joint, even tripartite, administration.
Of the sectors visited, the Police Commission of AACA, Peace and Administration Bureau of Oromia Special Zone Around Finfine from Oromia side could be mentioned, and found on good beginning. These sectors have joint plan aimed to ensure peace both in the Region and the City since the establishment of Special Zone. According to the interview held with Fekadu Seboka, and Habtamu Sisay, they have joint plan to keep peace in their jurisdiction, which is the corner stone for sustainable development, democracy, and stable life. Very interestingly, they added, their joint plan recognizes the already mentioned strong social and economic linkages of the people of the two governments. It seems to strengthen this tie in peace keeping, under the watchword of ‘peace is common affair’. With intent to achieve this goal, their joint plan includes the following common tasks which could be taken as promising:-
Investigating and gathering information that may cause conflicts between the two people and trying to address the issue before it grows to serious stage with the concerned body; preventing and managing crimes occurring around the boundary; exchanging continuous and reliable information; extradition of criminals crossing the boundary; cooperation to enforce court’s decision and orders from both sides; joint activity of traffic control around the boundary, and exchange of skilled man power and logistics as the case may be, for instance during national and international meetings, spiritual celebrations and the likes.
Joint interaction enables to attend and reduce cross boundary criminal activities in particular which are indeed leads to good administration and an input in creating economic and political community in general. Justice Bureau and Police Commission from AA side and Oromia Special Zone, from Oromia side have also joint program of performance even though the program is not deep rooted.
Other Similar Matters
There are characteristics which are inherent to almost all constitutions. One is its generality. While recognizing special interest, the FDRE Constitution at the end used constitutive phrase ‘other similar matters.’ The phrase ‘other similar matters’ indicates the catalogues of special interest are not intended to be exhaustive. It has no objective constitute for everyone who reads the Constitution. And it has got different interpretations.
The first line of interpretation is that the phrase ‘other similar matters’ has to be meant to show matters that are imminent and necessary for the implementation of the other explicit interests. Accordingly, participation in administration of land, access to land without lease payment, access to infrastructure, buildings, tourism and cultural halls, industry, naming of the City, security issue, trading, participating on policy issues affecting special interests and the like. This is narrow line of interpretation.
The second line of argument during the preparation of draft is somewhat broad. Accordingly, ‘other similar matters’ include automatic representation even without election in AACA, and in turn representing the City in Federal Houses, sharing of revenues and taxes from the City and etc.
According to Ato Abebe Fite, the second argument is wide-ranging, and beyond the intention of the constitutional framers. The Minute of Constitution does provide no little tip-off as to what constitutes the phrase. ONRS has its own research in this regard which is incorporated in the Draft Proclamation of Constitutional Special Interest according to Ato Dawano Kedir. This argument will be solved in the particular subsequent law, which is on process, has zero draft status today according to Ato Abat G/Tsadik.
CONNOTATIONS OF SPECIAL INTEREST
AAC Part of ONRS Vs. Independent City
Comments of analysts are powerful in that they tell us the will and desire of the people. In reporting a comment forwarded on Art. 49(5) by a delegate from the ONRS, which is found in a paragraph of Minute of the Constitutional Constituent Assembly reads as follows:-
[A]fter pointing out the national and international character of the City owing to the fact that it is home to the different Nations, Nationalities and Peoples of the Country and also the different international events the City hosts and in the end everybody including those who founded the City at time should know that the City lies in the territory of the Region. Since AA is found at the center of ONRS, unless there is a contrary decision by the Regional Council (Chaffe) to that effect, the City shall be the capital of not only the Federal Government but also as well as of the Region and as such the further expansion of the City is entwined with that of the Region, [bracket added].
The comment of this politician is not based on any legal ground. Rather it is based on a strong historic, geographic and nationalistic basis and is not given due consideration by what the country was embracing to accept, at least in my opinion.
The Federal Constitution provides nowhere that AAC is part of ONRS. It rather provides the constitutional rights of AAC resident’s to self-governance. The Constitution under Art. 49 (5) provides, “The special interest of… …arising from the’ location’ of AA ‘within’ the state of Oromia.” It does not spell out the location of AA as part of Oromia. Despite the defacto claim as ‘part’ of Oromia, there is no clear dejure ‘part’ recognition.
At this juncture, it is instructive to comparatively see experience of other federal capital cities.
Federal districts are found out of the territory and jurisdiction of any states/province. It is under the exclusive authority of the federal government and this reduces the possible dispute of interest between the federal government and states. As a consequence, it is known for center domination and ignoring of local interests. E.g. Mexico, Washington DC
City states have double duty of a federal capital and constituent member of a federation simultaneously. They are constitutionally guaranteed to exercise both rights of a capital and state together; it is less influenced by federal governments. E.g. Berlin, Moscow. AAC had this status between the enforcement time of Proc. No. 7/1992 and Proc. No. 1/1995.
In city in a state, the capital city falls under the competence of a member state of a federation. This model highly restricts direct influence of the federal government. E.g. Bern, Pretoria.
When one observes AA through the above criteria of federal capital cities, it cannot clearly fall to any. It is a federal district as per sole Art. 49 (1 and 3) of FDRE Constitution. It seems autonomous City administration as per Art. 49(2 and 4). It has its own Governmental Charter, Proc. No. 361/2003. A critical observer into Art. 2(1) of Revised Constitution of ONRS would see that the State of Harari and AAC has been left out from being neighboring State and City respectively. It is not clear what the implication of such an omission is. And also at the beginning of this same article we would find the phrase which reads, “The ONRS is the uninterrupted territory….” The phrase emphasized means a land mass, the territory of which is connected from one point to the next without being break up /interrupted by another land mass or territory. Assuming it is the meaning which is close to what the drafters had in mind in coming up with the phrase, it would give us the idea of refuting the legal personality given to the two territories and rights of the people under the Federal Constitution. Indeed, it may imply that AAC is part of the Region. If this interpretation is upheld, the City would have double standards of status under each of the constitutions which has far reaching effect.
Most government experts have a mere idea that AAC is a federal district. For instance, according to Ato Dawano Kedir, the status of AAC and the recognition of special interests are constitutionally undisputable. He added, the recognition of special interest only connotes great opportunity, not anti nor pro-Oromo racist ideas
Peaceful War: Horizontal Relations
Though an intergovernmental relation between ONRS and AACA is not a developed dimension, the enforcement of special interest suggests the necessity of intergovernmental relation. The absence of well-established and continuous interaction between these governments hints two points. One, they did not realize intergovernmental relations as a work horse in federal polity and as a tool of cooperation on common concern to prevent, manage and to respond conflicts. Because, the enforcement of the interest is unfinished project highly relied on continuous cooperation, compromise and negotiation. Two, the task of intergovernmental relation could be done through other mechanisms that are other than party channels, which could be difficult if either AACA or ONRS is governed by political party opponent to one another.
Peaceful War: Spillover Effects
Spillover effects are externalities of economic activity or processes those who are not directly involved in it. As the study conducted by Action Professionals’ Association for the People indicated downstream users of Akaki and Mojjo rivers face new health problem. It is easy to witness that most of the industries in the City are found on the rivers courses and virtually all of them discharge their waste mainly to the rivers.
Measures have to be taken by relevant government authorities to check the suffering of people living in the Akaki and Mojjo rivers basin taking the right to a clean and healthy environment, Arts. 44(1), 92(1,4) of FDRE Constitution, and Art.11 of Environmental Pollution Control Proc. No. 300/2002, Revised Constitution of Oromia Arts. 44(1) and 107(1) and 107(4).
A reply from Environmental Authority include, among others, a study on the pollution of Akaki river due to various pollution sources has been carried out in collaboration with Oromia Environmental Protection Office and AA Environmental Protection Authority in August 2005. In line with this, an action plan has been prepared to prevent sources of pollution.
The joint cabinet’s summit including the Mayor of the City and President of Region, held in December/January, 2009/10, admitted the unorganized activity to reduce, if possible to recycle, the wastes and regretted as the ‘lost golden chance’.
FUTURE CHALLENGES OF SPECIAL INTEREST
Future AAC: Spatial Expansion
The fact that AAC is the center of ONRS, FDRE, African Union, other international organizations and diplomatic relations gives an impression that the City needs to be long-drawn-out, the preamble of the City’s Charter, Proc.No.361/2003. The territorial limit of the City is elusively provided under Art.5 of the Charter. It can only be expanded by lands to be seceded from its only neighboring State. The Charter under Art.5 states:-
“Without prejudice to the existing one, the boundary of the City shall be delimited by an agreement to be made between City Government and ONRS or pursuant to the decision of the Federal Government and ONRS or pursuant to the decision of the Federal Government.”
Accordingly, there are three options to reach at the result sought; firstly, the concession to be reached between the City and Regional governments; secondly, the decision to be reached between the Federal and Regional governments; thirdly, the unilateral decision to be granted by the Federal government.
AAC is currently surrounded by the establishment of Special Zone Around Finfine: Dukem, Gelan, Lege Tafo, Sendafa, Sululta, Burayu, Holeta, and Sebeta, at the outskirt of the City to strategize, smooth the relations between the two governments, and to ensure mutual benefit. However, still there is continuous dispute over jurisdiction between Oromia Mines and Energy Resources Development Agency and respective Authority from AACA caused with absence of clear boundary. The issue is the former institution provides mining land to investor based on the license Proc. No. 617/2002. On its part the latter institution wrote a letter to Yeka Sub-city Environmental Protection Sector, who wrote a letter to Ethiopian Electric Power Corporation to halt the process of electric installation to the investor, reasoning the area is reserved forest site. This is another indicator to the absence of smooth, compatible zoning of land, and clear boundary.
Corruption surrounding the use and management of land is rampant. Corruption in the Zonal Administration is expressed in the form of selling or exchanging the common property through preparing false documents to support the illegal transfer of land from one person to another person.
The current Integrated Development Plan, (2014-2038), Draft Executive Summary, extending 40 – 100 km from the radius of Addis Ababa is designated to launch new era for the city’s legroom, at least as an immediate effect. The plan encompasses 17 rural districts and 36 urban centers including AA. Total area of the Plan is estimated to be 1.1 million hectares. Leave alone its inconsistency with the aim of the Constitution, Art. 49(5), the Plan is full of limitations. It lacks office fair representation, while the issue is intertwined with the interest of ONRS; prior consultation, participation and notification, the plan is centrally-imposed and it is readymade, Art. 43(2) and 89 (6) of FDRE Constitution, to mention few. Though the Plan has these and other limitations, the governing party still sermonize ‘developmental’ dogma whenever the Peoples’/Region’s interests are raised formally and/or informally; further tag ‘anti development/peace’ against those who raise the limitations.
Versions of Self-determination: Secession and Self-governance
Geographic descriptions of ONRS and AAC given under Art. 2(1) of Revised Constitution of ONRS and Art.49(5) of FDRE Constitution respectively and the consequential constitutional rights guaranteed under Arts.39 and 49(2) of FDRE Constitution is another challenge.
Fredrik Kirgis, Jr. identifies forms of expressions of right to self-determination, the right to secession and self-governance among the faces of self-determination. The right to secession and self-governance are two of the peculiar features of the Constitution that emanates from the overriding significance given to the ethno-linguistic Nations, Nationalities and Peoples. The Constitution nowhere explains the difference between Nations, Nationalities and People.
Though there are many other ethnic groups within the ONRS, the Regional Constitution guarantees only for the people of Oromia. The Constitution in its preamble does talk about, “We the Oromo People…” The Constitution defines what the Oromo Nation means in Art. 39(6) and it reads:-
For the purpose of this Constitution, the expression of “the people of the Oromo Nation” shall be construed as a meaning those people who speak the Oromo language, who believe in their common Oromo identify, who share a large measure of a common culture as Oromo’s and who predominantly in habit in a contiguous territory of the Regional State.
It follows that under this Constitution, it is only the Oromo Nation that enjoys the right to self-determination including secession if one reads Art.39 exhaustively. The challenge, inter alia, here is what would happen to the residents of the City who are not belonging to the People. Further, Art 2(1) of Regional Revised Constitution defining Oromia as uninterrupted land mass running from north to south, east to west claims the City as its own. Federal Constitution emphasizes the location of AA within ONRS, while the Regional one presumably emphasizes the status of AA as part and parcel of the Region.
The Federal Constitution under Art. 39(3) guarantees the right of self-governance to Nations, Nationalities and Peoples. However, the Constitution sees AAC citizens in different light. In all parts, the Constitution uses the terminology “Nation, Nationality and peoples of Ethiopia,” where as when it comes to AA, it prefers to use the term resident. Perhaps due to difficulty of specifying their composition in the capital city, this right is given to residents of AA in general.
The double status from the perspectives the two Constitutions leads to inconsistency where these rights, right to secession and self-governance, go to be exercised as per Art.39 of FDRE Constitution. Could one boldly move to say the provision of the latter Constitution is unconstitutional as per Art.9(1) of the FDRE Constitution? Or could one evasively at highest level say the Region has special interest over the City and nothing else?
Constitutionally speaking, Art. 39(3), AAC residents have only right to internal self-determination to their choices form of government. According to Cassese, internal self-determination is defined as:-
The right of authentic self-government is the right for the people really and freely to choose its own political, social and economic regimes. This core consists of the right of the community, which has a distinct character to have this character reflected in the institution of government under which it lives.
The contradiction lies between the right to self-determination including secession of Region and self-governance of City excluding right to secession, Arts. 39(1) cum 47, and 49(2) of FDRE Constitution respectively. Secession of Oromia without the City is life without heart; AAC is geographically the center of ONRS. That is why in 2001, the decision by ONRS to move its capital from AA to Adama became grave issue among Oromo people from all corners of Oromia and all walks of life.
If the State simply says, this is merely an exercise of our constitutional rights to self-determination which is unconditional and non-derogable, Art. 39(1) and 93(4,c), a number of propositions may be forwarded as solutions to the question in issue. The primary task now is to determine the scope of the right to self-determination with regard to territorial jurisdiction including secession and self-determination, then to identify the possible limitations to its exercise, if any, and lastly to check the propriety of the limitation. This raises a constitutional dispute which shall be resolved only by the decisions of the House of Federation as may be presented to it via the Constitutional Council of Inquiry; the technical and advisory body of the House, Arts. 83 cum 84 of FDRE Constitution.
The possible way out is to restrict Art. 49(5) to issue of special interest and to leave issue of self-determination to Art. 39. And further, to let the post issues to be determined under the principles of state succession.
Tragedy of Multiple Taxation
Revenue sources of ONRS and AACA over the City may prone to multiple taxation owing to the special interest and right to self-administration and accountability to the Federal government respectively. If ‘Other similar matters’ as an element of special interest is interpreted to include the right to levy and collect taxes or where other interests; ‘provision of social services, utilization of natural resources or joint administrative matters,’ in its selves constitute right to levy and collect tax , by Art. 98 of Federal Constitution concurrent power of taxation where the Federal government, under accountability reason, and the State jointly levy and collect taxes.
The problem arises for there is no detail laws or framework method of sharing power by which the center may legislate tax laws and state collect to share jointly. In the absence of these arrangements, both governments may levy and collect separately on the same matter they own jointly.
The Legal Limbo
The proviso of Art. 49(5) of FDRE Constitution says, “particular shall be determined by law”. Further, Art. 62(2) of the Revised Charter provides the House of Peoples Representative would pass the law on Constitutional Special Interest. However, though it is clear from the Constitution that it is ‘law’ decades passed no enforcement law until this data was collected. Despite some attempt, it is remained as a draft since 2009 having 12 articles.
The House of Peoples Representatives has power to ratify or enact the particular, Art.55(1, 2a) FDRE Constitution. The House may ratify the bills initiated by another concerned body or enact the law on its own motion and initiation. The draft, prepared by ONRS, was submitted to the House for approval. The House has not yet dealt with the draft for unknown reason, according to Ato Abat G/Tsadik. The potential confrontation is scope of application the subsequent law encompasses.
Under Multiple Political Party System
If one homogenous political party controlled all governments, both federal and states, there would be no occasion for intergovernmental conflicts. If on the other hand, if all constituent governments were controlled by one homogenous political party and the central government by another, the degree of federal conflict would be tense. Between these two extremes lie all existing federations.
Ethiopia is ruled at present by a coalition composed of several regionally based ethnic parties. Ethiopian People’s Revolutionary Democratic Front is the creator of Oromia Peoples Democratic Organization. The founding party and that of the Region have almost similar objectives or the latter implements the policies of the former in the Region and in where it has interest. More or less, the Regional ruling party has no enough different concern than the founding party. The challenges are where the following scenarios are assumed:-
1. Multi-political parties governing FDRE and ONRS; the case where both interest holders, ONRS and FDRE being governed by multi-party with different policy-objectives;
2. Multi-political parties governing FDRE and AACA; where differing parties win seat in FDRE and AACA; like the case of 2005 election though Coalition for Unity and Democracy political party refused or not accepted the result;
3. Multi-political parties governing AACA; where AAC is being held by multi-party system, keeping ONRS constant ; and
4. Multi-political parties governing ONRS; the case where multi party governs ONRS, keeping AAC constant.
The assumptions may work cumulatively or independently. Or generally, what would happen if the Region or/and City fall under opponent political parties against party at the center or vice versa? Which parties deal with which parties regarding the Constitutional Special Interest for effective implementations? From the current trend, there is inevitable potential that opposing Parties will come to power both in the Region and the City in near future.
ENFORCEMENT OF SPECIAL INTEREST
House of Federation
There are technical questions of constitutional interpretation which Ethiopian law does not entrust to academics or even to the ordinary courts. As the final arbiter of constitutionality, House of Federation has ultimate power of interpreting the Constitution, Arts. 62(1, 4) and 83(1) of FDRE Constitution.
Regarding Art. 49(5) of FDRE Constitution, there was request from ONRS to the House to clarify the points generally mentioned. According to the request letter, due to the central geographic position of AAC there are joint administrative matters and thus, special interest of the Region has to be respected. Furthermore, the provision of social services, utilization of natural resources, administrative matters and other similar matters are to be dealt keeping special interest in focus. The speaker of the House sent the matter to Constitutional Council of Inquiry for further deliberation with its own comments.
The House forwarded the following Opinions:-
1. The special interest of ONRS over AA is put in general terms in the Constitution, Art. 49(5). It further says, “Particulars shall be determined by law”.
2. Under Art. 62(8) of the Constitution and Art. 34 of enforcement proclamation, the House has power to investigate and propose bills on areas of civil law in order to create one economic society. This may be set into motion by the House itself or upon request.
3. According to Art. 83 of the Constitution, the Council is vested with the power to investigate and suggest solution on questions raised as constitutional disputes. Art. 84 of the Constitution stipulates that the Council shall propose its solution on matters when state laws or federal laws are deemed unconstitutional. It shall present the solution for the House’s decision. The question raised by the Region is not presented as a constitutional dispute according to Art. 83. The absence of any new laws that are found unconstitutional makes Art. 84 inoperable. Thus, both Arts. 83 and 84 are inapplicable to this question.
4. The House of Federation is vested with the power to propose a bill to the parliament about the benefits due to ONRS from AAC in areas of natural resources, public services and administrative matters. The bill shall be based on previous proposal of the Region.
5. Proc. No. 361/2003, Art. 62(2) stipulates, according to Art. 49(5) of the Constitution that the special interest of ONRS shall be respected and specific laws shall be made upon agreement between ONRS and the AACA or by law to be passed by the legislature.
6. Accordingly, the question raised can be solved. If the proposed law is unconstitutional the issue shall be dealt with in the future.
For the present situation, the House’s opinion is that there is no need for any constitutional interpretation. Equally enough, Ato Desalegn Weyessa, said the special interest is a constitutional right; the Constitution is clear. There is no law enacted yet and found unconstitutional regarding the particular of special interest, Arts. 83(1) and 84(1) of FDRE Constitution.
House of Peoples’ Representatives
House of Peoples’ Representatives is another Federal House, Art. 53 of FDRE Constitution. Among important roles which are vested to the House includes the legislative aspects. Its legislative jurisdictions are enumerated under Art. 59(1 and 2) the Constitution.
In regard of the study at hand, Art. 49(5) of FDRE Constitution reads, ‘particulars shall be determined by law.’ As the matter involves or touches on the interests of more than one self-governing entity, the power to promulgate laws on this issue should be left to the central government, Art. 55(2,a). According to Art. 62(2) of Revised Charter, a means of extending time, this House has legislative power to detail the Constitutional Special Interest. The scope of law to be made by the House could not be limitation to Art. 49 (5) of FDRE Constitution’s constituents of special interests.
Special Joint Committee
The establishment of Joint Committee of ONRS and AACA in AAC, for its valuable role in facilitating forum for exchange of views concerning special interest among legislatives, executives and judicial organs of both governments has to be considered. It would be simple to run about Constitutional Special Interest if the members to this potential Committee are from executive organs of respective governments.
The governments of ONRS and AACA are rethinking of the establishment of Special Joint Committee dealing with special interest, Draft Proc. On Constitutional Special Interest, 2009, Art.5. If the plan becomes successful in that regard, it would be actually expression for good model of intergovernmental relation in the federation. It may act as channeling institution between the two governments in different spheres including special interest.
Today, since 2013, the so called “Addis Ababa and the Surrounding Oromia Special Zone Integrated Development Plan Project Office” is organized. However, its objective is out of the objective foreseen by the Constitution. The Project Office is mainly demanding to connect and annex at the end The Surrounding Oromia Special Zone to the City, while the Constitution is committing to benefit the Region from the City itself. The plan of the Project Office is not supportive and has lost blessing from almost all. It demonstrates further evictions of People and the exploitation of special interest.
Special interest of Oromia over AAC is guaranteed when the Constitution is ratified, Art. 49(5) of the FDRE Constitution. The phraseology is methodological preference opted for by the framers of the Constitution. Its inclusion in the Constitution has attained the status of recognition or disintegration during the debate on the draft of the Constitution. There were/are confusion, suspicion, fear and inability to internalize the technicality of the Constitution.
The Constitutional Special Interest includes provision of social services, utilization of natural resources, joint administrative matters, and other similar matters. Each of these elements has its own scope. Especially, the last one is capricious. The catalogues of special interest are not exhaustive which in turn creates sides of interpretations, it is complex package deals. Its recognition has social, historical and economical, geographical and legal grounds.
In effect, it is not a manifestation of pro or anti-Oromo racist idea. It is rather a mirror of peaceful war; horizontal relation or spillover effect. These are inevitable junctures in intergovernmental relations. More, that part of the Constitution does not connote the status of AAC as independent City or part of Oromia. What the Constitution tries to do is, to benefit ONRS from the City regarding the catalogues of interest.
State officials and experts, who care about the esoteric subject of federalism, worry that the recognized Constitutional special interest is deteriorating because of different factors. Most contemporary, boundary dispute has become common a rush to control population and territory. Seemingly to tackle this problem, currently there is Special Zone established around all the outskirts of AAC, though it lacks practical continuity to the plan anticipated. As an extension to this challenge, the constitutional right to self-determination including secession of ONRS and AAC resident’s right to self-governance practically are conflicting since territory is seriously taken by the Constitution when one intimately reads Arts. 39(1) cum 39(5) and 49(2) cum 39(3). Art. 2(1) of Revised Constitution of the Region further complicates by employing the term which asserts AAC as part of the former.
Revenue sources of ONRS and AACA over the City may prone to multi taxation, for there is Constitutional Special Interest of the former and right to self-governance of the latter mainly caused by general constitutional clauses including Art. 49(5): ‘other similar maters’ or/and Art. 98.
The Constitution provides the coming of subsequent law detailing the interest. The request for interpretation and Draft Proclamation of particular are not greeted by the Federal Houses which lacks clarity for its lateness. The scope of subsequent law could not be limitation to the provision the Constitution, Art. 9(1).
It is verity that Oromo Peoples Democratic Organization political party is the member of Ethiopian People’s Democratic Revolutionary Front political party. When there is a potential move from single political party system to multi system of political party there would be a progress from simple to the more complex and challenging. It may happen at four folds; firstly, multiparty governing FDRE and ONRS; secondly, multiparty governing FDRE and AACA; thirdly, multiparty governing ONRS; fourthly, multi-party governing AACA.
The challenge will be triggering in the absence of acting formal institutions. Institutions such as House of Federation and House of Peoples’ Representatives have their own role for the enforcement. Some institutions are reluctant and while the functions of others are still misnomer. This research suggests the pressing need for the establishment of Special Joint Committee acting between the two governments working on the interest. Hence, unless princely institutional enforcements are involved and employed, the present exigent status of special interest remains to be the future challenges.
The following are forwarded as recommendations to ensure effective implementation of the Constitutional Special Interest:-
The ONRS should possess and develop demonstrable competence and expertise; different sorts of State officials united; strong interest groups aligned with the particular policy position, so that fair competition would be resulted.
ONRS and AACA should be alert enough in avoiding unhealthy rivalry and competition. They have to develop culture of continuous negotiation targeted to build unity from diversity giving effect to the dictation of the Constitution.
The constitutional order for determination of particular by subsequent law has to be effected by concerned legislative body right away either on its own motion or ratify the bills assumed to be initiated by joint meeting of ONRS and AACA in response to the confusions on the ground .The powers and responsibilities of the two governments should be clearly delimited by the law concerning special interest. And the Region should participate in federal policy making concerning AAC to safeguard its interest.
The right to self-determination, having double standards, territorial and population, creates conflict with regard to AAC. The FDRE Constitution under Art. 49(5) incidentally used the words such as the location of AA within ONRS. This does not match with what is provided under the Revised Constitution of the Region under Art. 2(1), which describes ONRS as uninterrupted land mass. Given the Oromo Peoples right, there may be neither satisfaction nor willingness to continue with the existing system, they may resort to secession. The possible way out under the existing situation is to limit Art. 49(5) to issues of special interest. Or it calls for constitutional amendment in this regard. The amendment, if opted, should focus on the historical, geographical and legal grounds which entitle the Region.
The horizontal relationship between AACA and ONRS should be formally strengthened. To replace some ad hoc and informal interactions particularly, the party channels, it seems due time to look for formal autonomous institutions of intergovernmental relations at Federal, Regional and City levels which can survive crises and differences.
Higher executives of ONRS and AACA including Regional President, Mayor of the City and Head of Special Zone around Finfine should create room or forum to hold regular joint discussion on joint matters including special interest.
To strength the mutual benefit of the two peoples, to expand positive externalities and to manage negative externalities, participation of the surrounding local community deserves due attention. It enables them to reflect their views in the social cultural, economic planning and implementation of environmental activities that affect and benefit them directly or indirectly.
This study has found the necessity of legally established Special Joint Committee of Constitutional Special Interest. It would be alliance of ONRS and AACA in AAC for its valuable role in facilitating forum of intergovernmental relations between the two governments. The establishing law should clearly assign the Committee and empower with the main dictation of the Constitution.
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