Essential conditions for validity of marriage pertain to biological, psychological and sociological factors. The biological factors relate to age, sex and state of health of the future spouses, whereas the psychological factor relates to the freedom of will of the parties. On the other hand, the sociological aspect pertains to issues like marriage between persons related by consanguinity and affinity as well as by adoption and it also incorporates bigamy. When we come to the sources of such restriction, O’Donovan had the following to say:
Such impediments were known to the Feteha Negest and covered obstacles to the union arising from prior relationships, from previous marriage, or from age. Also included were defects arising from the ceremony itself. Such marriages were prohibited and in some cases gave rise to penal sanctions. Many of the impediments found in the Feteha Negest have been retained in the Civil Code. But those related only to the rules of religion have been dropped.
The essential conditions that are found in the RFC are derived from the Civil Code, which in turn is derived from the Feteha Negest. So we can say that most of the conditions are derived from the Feteha Negest.
In the following sub topics, discussion will be made on these essential conditions for the conclusion of a valid marriage.
Marriage is an institution which is to be entered into by the parties with their free and full consent. The UN Convention on Consent to Marriage, Minimum age of Marriage and Registration of marriage as well as the Recommendation of the UN General Assembly which was adopted in 1965 provide consent as a prerequisite for the conclusion of marriage.
Pursuant to article 1 of the UN Convention, no marriage shall be legally entered into without the full and free consent of both parties. This requirement is further strengthened by the Recommendation. The Convention as well as the Recommendation put an obligation on member states to make sure that future spouses have decided, of their free will and consent, to enter into marriage. One way of compliance with this obligation is the harmonization of domestic laws in line with the international commitments of the countries. Ethiopia is one of the countries who have acceded to this Convention. As a result, the Constitution as well as the RFC and the regional family codes incorporate consent as a validity requirement of marriage.
In some parts of Ethiopia, the culture does not require the consent of the future spouses for conclusion of marriage; rather what really matters is the willingness of their parents to tie their children in bond of marriage. In effect many marriages have been concluded not on the basis of the willingness of the spouses but of their parents. This has been considered as a ground for many disputes in families. Considering this deep rooted culture, many efforts have been made to bring change, particularly through the use of legislations. In this respect what comes in the fore front is the 1995 Constitution. Article 34/2 of the Constitution reiterates the requirement that marriages should be entered into upon the free and full consent of the parties. In addition to this the RFC considers the free and full consent of the parties as a validity requirement for conclusion of marriage.
When the international as well as domestic legal instruments require existence of consent as a requirement for marriage, it implies that ‘there must be no duress or force inducing the marriage or any misunderstanding as to the effect of the marriage ceremony.’ Hence, the RFC recognizes some grounds which would vitiate the consent of the spouses.
The first ground which is considered as a base for vitiating consent of the parties is error. However, it is not all types of errors which would vitiate the consent, rather, as per article 13/2 of the RFC; the error has to be a fundamental one. What the law considers to be fundamental errors are illustrated under sub article 3 of article 13. These include:
- Error on the identity of the spouse where it is not the person with whom a person intended to conclude marriage: - here the mistake has to be as to identity rather than as to attribute. Cases of impersonation can be considered as fundamental error falling under this category. However, if the error pertains to the attribute of the person like for instance if one party mistakenly thought that the other was rich, it can not be considered as a fundamental error as per the requirement of the article and hence, will not be a ground to invalidate the marriage.
- Error on the state of health of the spouse who is affected by a disease that does not heal or can be genetically transmitted to descendants:-
- Error on the bodily confirmation of the spouse who does not have the requisite sexual organ for the consummation of the marriage
- Error on the behavior of the spouse who has the habit of performing sexual acts with person of the same sex.
The other ground which would vitiate the consent of spouses to enter into marriage is violence. If the consent to marry was extracted by violence, it cannot be said that the party has freely consented to the marriage. As a result, article 14 of the RFC considers a marriage concluded when consent is extorted by violence as an invalid marriage. Moreover, the article further illustrates situations which might lead the court to determine whether the consent was extorted by violence or not. Hence, if the consent was given to protect himself/herself or one of his/her ascendants or descendants or any other close relative from a serious and imminent danger or thereat of danger, it can be said that the consent was extorted by violence.
Some of the issues which need further clarification on consent extorted by violence include the following.
- What must the threat or fear be of? At one time it was thought that it was only possible for duress to render a marriage voidable if there was a threat to life, limb or property. Recently the court of appeal in Hirani vs Hirani suggested that the test for duress should focus on the effect of the threat rather that the nature of the threat. In other words, the threat can be of any kind, but it must be shown that the threats, pressure or whatever it is, is such as to destroy the reality of the consent and overbear the will of the individual. In the case of Hirani vs. Hirani the court accepted that social pressure could overbear the consent. The woman was threatened with ostracisation by her community and her family if she did not go through with the marriage and the fear of complete social isolation was such that there was no true consent. The effect of the Hirani decision is that those who have undergone an arranged marriage in the face of a serious threat have the choice of either accepting their culture and the validity of their marriage or accepting dominant culture’s view that marriage should be made voidable. This could be regarded as an appropriate compromise between respecting the cultural practice of arranged marriages and respecting people’s right to choose whom to marry.
- Must the fear be reasonably held? What if threat was made, but a reasonable person would not have taken it seriously? In Szcher it was suggested that duress could not be relied upon unless the fear was reasonably held. Against this is Scott v Selbright in which it was suggested that as long as the beliefs of threats were honestly held, duress could be relied upon. The second view is preferable because it would be undesirable to punish a person for their careless mistake by denying them an annulment.
- By whom must the threat be made? The thereat can emanate from a third party; it need not emanate from the spouse.
Judicial interdiction exists in the cases where a person is insane according to article 339 of the Civil Code and where he has bee n interdicted by the court. The court orders interdiction of the person because his health and his interest so requires or because his heirs’ interest so require. These two conditions have to simultaneously be present for the court to give order of interdiction. The order of interdictions means the interdicted person will have lessened capacity and hence need to be protected. ‘The basic idea underlying these protective measures is to ensure that the physical person who holds rights and duties but cannot exercise them is provided with the assistance of some other person who shall act on his behalf in most acts of juridical life.’As a result of the lessened capacity, an interdicted person may conclude marriage only with the authorization of the court.
As discussed above, under Ethiopian law, marriage is an institution to be entered into by the full and free consent of the parties. In order to freely consent to the marriage, the parties should understand the consequences of their acts, and hence need to attain a certain age. The Convention on Consent to Marriage, Minimum age of Marriage and Registration of Marriage under the preamble, by making cross reference to the Universal Declaration of Human Rights provides that it is only those men and women who attained full age who can enter into marriage. This being the requirement, the next question would be as to who could be considered as being of full age. Specifying the minimum age for marriage is left for the individual countries to govern through legislation. However, this power of the state is not without any limitations. As can be seen from the Recommendation on Consent to Marriage, Minimum Age for Marriage and Registration of Marriages, General Assembly resolution 2018 (XX), principle II, Member States shall take legislative action to specify a minimum age for marriage, which in any case shall not be less than fifteen years of age. Hence, the minimum marriageable age in any country will be 15 years, though it can be set at higher age than this.
There are different reasons which can be raised as a ground for limiting the minimum marriageable age of spouses.
‘The standard justification for age restrictions has been the claim that “[m]arriage involving teenagers are more unstable than other marriages and are more likely to end in divorce than other marriages.” It is not clear, however, that the youth of the participants is what causes their marital failure. A number of studies point to non-age related factors as important predictors of marital failure.’
When we come to the RFC, the minimum marriageable age is 18 years for both sexes. Hence, any person who has not attained the full age of 18 years may not conclude a valid marriage. However, there are circumstances in which a valid marriage could be concluded without the fulfillment of this requirement. This is provided as an exception under sub article two. If the Minister of Justice, for serious cause, grants for dispensation, on application of the future spouses, or the parents or guardian of one of them, marriage could be validly concluded. The dispensation, however, may not be more than two years. This means, the maximum year that can be dispensed by the Minister is 2 years, and hence, the lowest age of marriage can be 16 years.
This exception provided under the RFC is in line with the power given to states by the Convention as well as the Recommendation. Both documents recognize the power of the appropriate authority to grant dispensation for serious reason in the interest of the future spouses. The very basic question here is as to how the serious cause can be identified.
The other essential condition for the conclusion of marriage is relationship, or rather the existence of prohibited degrees.
Although it would be true to say that restrictions on certain types of sexual relations are a universal feature of primitive and advanced societies, it should be remembered that ‘this must be understood as meaning that some sort of prohibition on mating is universal, not that a particular set of relations is universally tabooed’. Thus a wide variety of restrictions are possible, ranging from ‘elementary’ systems in which prohibitions on certain relations are accompanied by a requirement that individuals marry only from within a certain group, to ‘complex’ systems in which only certain relations are excluded and the choice of partner is left to the individual.
In many societies across the world there are laws which prohibit marriage between people who are related. The same is true in Ethiopia. The restrictions under the RFC are based on two groups of relations: those based on blood relationships i.e. consanguinity and those based on marriage, i.e. affinity. These restrictions were also maintained under the 1960 Civil Code, though with a different degree of restriction.
The prohibited consanguinity restrictions involve marriage between persons related in the direct line between ascendants and descendants. Hence, marriage between parent and child, grandparent and grandchild is prohibited. On the collateral line, article 8/2 prohibits marriage between a man and his sister or aunt and also a woman and her brother or uncle.
There are different reasons given for prohibiting marriage between related persons. The first argument is the fear of genetic danger involved in permitting procreation between close blood relatives. In technologically advanced countries, however, it is argued that the availability of genetic screening could avert the danger, and hence the restriction cannot be supported.
The other arguments raised for the restriction include
‘…permitting marriage between close relations may undermine the security of the family. The argument is that children should be brought up without the possibility of approved sexual relations latter in life with the members of their family. The third argument can be based on the widespread instinctive moral reaction against such relationships.’
At the time of debating on the draft RFC, the reason for restriction as well as up to what degree the restriction should be was discussed thoroughly. Under the 1960 Civil Code, marriage between ascendants and descendants as well as collaterals up to the 7th degree was prohibited. Some suggested that the ground for this restriction is Christianity and the culture of the Northern parts of the country, and hence is not representative of the whole society. However, as discussed above, the restriction is also available in other countries of the world and is also supported by medical evidence. Hence, in order to reconcile the different religions and culture in the country with the science a limited restriction as far as collaterals is concerned, is adopted by the RFC.
Marriage between persons who are related by affinity in the direct line is also prohibited under the RFC article 9. On the collateral line, marriage between a man and the sister of his wife, and a woman and the brother of her husband is also prohibited. When we analyze the restriction in light of the grounds for restriction, not all the arguments hold water. Though there are genetic dangers involved in permitting procreation between close blood relatives, these dangers do not exist at all between affinies. Hence, it can be argued that the reason for such prohibition in the affiny is one of moral, rather than scientific.
The other essential condition for the conclusion of a valid marriage is the absence of prior marriage. As stipulated under article 11 of the RFC, a person is not allowed to conclude marriage when he is bound by the bonds of a preceding marriage. Many countries have laws which prohibit bigamous marriages. For instance, if we look at article 35/4 cumulative article 41 of the Family Code of the Philippines of 1987 contraction of marriage by a person during subsistence of a previous marriage makes the subsequent marriage null and void.
On the issue of bigamy Herring has the following to say in relation to the English law
If at the time of the ceremony either party is already married to someone else, the ‘marriage’ will be void. The marriage will remain void even if the first spouse dies during the second ‘marriage’. So if a person is married and wishes to marry someone else, he or she must obtain a decree of divorce or wait until the death of his or her spouse. If the first marriage is void it is technically not necessary to obtain a court order to that effect before marrying again, but that is normally sought to avoid any uncertainty. In case of bigamy, as well as the purported marriage being void, the parties may have committed the crime of bigamy.
Many cultures do permit polygamous marriages, although in British society monogamous marriages are the accepted norm. There are concrete objections to polygamous marriages. Some argue that polygamy may create divisions within the family, with one husband or wife vying for dominance over the other, and particularly that divisions may arise between the children of different parents. Supporters of polygamous marriage argue that polygamy lead to less divorce and provide a wider family support network in which to raise children. Polygamy could also be regarded as a form of sex discrimination unless both men and women were permitted to take more than one spouse. There have also been suggestions that permitting polygamous marriages involves an insult to the religious sensitivities of the majority.
These arguments in favor and against polygamous marriages were also reflected at the time of debating on the draft RFC. Ethiopia is a multi religious and multi cultural country. Some consider condemnation of polygamous marriage against their culture and religious beliefs. Some followers of Islam religion were arguing at the time of the debate that it would be against the right that they obtain by virtue of their religion, and hence polygamous marriages should not be prohibited. However, there was also division of opinion on the part of the followers of Islam on this. On the other hand, female right advocates were arguing that it is against the Constitutional right of female to allow polygamous marriage. Taking into account the diverse views on the issue, the law opted for the first view. Hence, for a person to conclude a valid marriage there should not be a preceding marriage.
Period of Widowhood
The concept introduced here by the legislature relates to the fact that a woman is under prohibition to remarry within the next one hundred and eighty days following the dissolution of her former marriage. This condition was also included in the Civil Code of 1960 and was subject to criticisms from different parties, particularly from female right advocates. They construe this provision as limiting the right of female to conclude marriage at any time she wants, mainly because the limitation does not apply for males. However, when one looks into the rationale for this restriction, it will be clear that the limitation is nit designed to discriminate between the two sexes.
The rationale for the limitation under article 16 is to respect the right of children enshrined in the Constitution and other international human right instruments to which Ethiopia is a party. Article 36/1/c of the 1995 FDRE Constitution provides that each child has the right to know and be cared for by his/her parent or legal guardian. This principle is also enshrined under article---- of the UN Convention on the Right of the Child (CRC) to which Ethiopia is a party. In addition to this right, article 128 of the RFC provides a presumption as to the duration of pregnancy. In order to respect the right of children and also to comply with the presumption, it is necessary to avoid any circumstances which would create a doubt as to who the father of that child is. Hence, by requiring the female to wait for a period of 180 days following the dissolution of a previous marriage, the law tries to avid any conflict of paternity.
Taking into account the modern advances of medical science in which the existence of pregnancy can easily be identified, it may be argued that the condition is unnecessary. However, we have to also look into the fact that many women in the country do not have access to facilities providing the service. In addition to this, the article also provides for some exceptional circumstances in which the 180 days restriction need not be observed.
The first of such exceptions is if the woman gives birth after the dissolution of marriage and before the lapse of the 180 days. In such a situation, it is presumed that the child is born from the previous marriage and hence there will not be any conflict on paternity. Hence, she may remarry even before the 180 days lapsed. Remarrying the former husband will also avoid the conflict on paternity and hence if the woman is marrying her previous husband, she may do so without waiting for the 180 days. In addition to this, if she can prove by medical evidence that she is not pregnant, she need not wait for the lapse of the specified time before concluding another marriage. Taking into account the fact that it is impossible to list all the grounds which may dispense a woman from observing the period of widowhood, the law gives discretion for the court to dispense her from observing the this requirement for any other valid reason.
In earlier times, before two persons conclude marriage, they would go through the process of betrothal. Mainly the betrothal was concluded between the parents of the future spouses. Betrothal is defined under article 560 of the civil code as a contract between the members of two families that a marriage shall take place between two persons, the fiancé and the fiancée, belonging to these two families. Hence, under the Civil Code, the betrothal contract is to be concluded between family members of the future spouses and more emphasis is given to the choice, consent and interest of these family members rather than the future spouses. Moreover, in many circumstances the practice shows that betrothal was concluded when the future spouses are underage and sometimes not yet born. This means, the interest and choice of the future spouses was not considered at all.
On the other hand, the Constitution of 1995 recognizes the right of individuals to form a family with their own free and full consent. As result, the provisions of the Civil Code dealing with betrothal were found to be contrary to this fundamental right of individuals. Hence, the RFC has excluded the concept of betrothal as a whole.
However, some regional family codes maintain the concept of betrothal with modification. The major modification made relates to the definition given to betrothal. All the regional laws which incorporated the concept of betrothal defined it as a pact between the fiancé and fiancée to conclude marriage sometime in the future. This is unlike the definition given by the Civil Code which involves only the parents or guardians of the future spouses.
The Family Code of the Amhara region requires the contract of betrothal to be made in a written form signed by four family witnesses, two from each side. On the other hand, the family code of the Benishangul Gumuz region allows betrothal to be concluded pursuant to the custom of the area. This may be either in writing or orally, whichever is customarily practiced in the region. When we look into article 4 of the SNNP regional family code, both options are included.
The family codes have also provided a time framework for the duration of the betrothal. Article 6 of the SNNP family code leaves it open for the parties to determine the duration of betrothal. However, if the parties fail to mention the time for the conclusion of marriage, it requires them to tie the pact within a year after the conclusion of the betrothal contract. The family code of the Benishangul Gumuz, on the other hand, gives only six months after the conclusion of the betrothal contract. The time framework given under article 6 of the Amhara regional family code is two years. Hence, the marriage has to be concluded within two years following the betrothal contract.
The family codes have also envisaged a situation for the invalidation of the betrothal contract. If one of the parties to the betrothal contract communicate their intention to invalidate the betrothal, or refuse to conclude marriage within the intended period or engaged in any act to impede the conclusion of marriage, the betrothal contract will be invalidated. The consequences of breach of the contract are also illustrated in the subsequent articles.
Definition of Marriage
The family in the Ethiopian Constitution is recognized as the natural and fundamental unit of a society and an important legal and social institution. As a result, it is given legal protection. One thing that should be noted here is that a marriage may be regarded as either a status or a contract. As Jonathan Herring noted
Marriage could be regarded as either a status or a contract. In law a status is regarded as a relationship which has a set of legal consequences which flow automatically from that relationship, regardless of the intention of the parties. A status has been defined as ‘the condition of belonging to a class in society to which the law ascribes peculiar rights and duties, capacities and incapacities.’ So the status view of marriage would suggest that, if a couple marry, then they are subject to the law governing marriage, regardless of their intentions. The alternative approach would be to regard contract as governing marriage. The legal consequences of marriage would then flow from the intentions of the parties as set out in an agreement rather than any given rules set down by the law.
Marriage is perhaps best regarded as a mixture of the two. There are some legal consequences which flow automatically from marriage and other consequences which depend on the agreement of the parties. The law sets out: who can marry, when the relationship can be ended and what are the consequences for the parties of being married.
In Ethiopia, marriage is regarded in both the Civil Code. The Revised Family Code and the regional family codes as an institution, rather than a contract. However, when it comes to defining this institution, neither laws are helpful. Hence, to have a common understanding of the institution, it is necessary to resort to the definitions given by other foreign laws.
In the English legal system, marriage, as defined by Sir James Wilde in the land mark case of Hyde Vs Hyde, is the voluntary union for life of one man and one woman to the exclusion of all others. This same definition is also upheld under the Australian Marriage Act of 1961. The definitional part as well as Section 46 of the Australian Marriage act defines marriage as the voluntary union of one man and one woman for life to the exclusion of others. This definition has been taken from the English definition of marriage. Both definitions contain three common elements. First, the marriage has to be concluded between a man and a woman, there is no legal marriage between same sex persons. Secondly, the institution of marriage is to be entered into with the absolute consent of the parties i.e., voluntarily. In addition, the marriage is expected to last for a life time, death being the only cause for dissolution.
The Philippines Family Code of 1987, on the other hand, defines marriage as a special contract of permanent union between a man and a woman entered into in accordance with law for the establishment of conjugal and family life. In addition to the elements that are present in the English and Australian definition of marriage, the Philippines family code considers the establishment of conjugal and family life as essential elements for marriage.
The definitions given by the different legal systems have their own shortcomings. All the documents tend to be ideal in the sense they expect the union to last for life, while in reality marriages breakdown for different reasons other than death. Moreover, the central aim of concluding marriage seems to be establishment of a family, while in reality, some couples conclude marriage knowing that they cannot have their own children.
Taking into account the insufficiency of the definitions given by many foreign laws, the Ethiopian legislature opted not to give any definition at all.
Modes of Conclusion of Marriage
The Revised Federal Family Code as well as the Regional Family Codes recognized three modes of conclusion of marriage. These are: Civil Marriage, Religious Marriage and Customary Marriage.
Civil Marriage (Marriage Concluded before an Officer of Civil Status)
For a marriage to be considered as being concluded before an officer of civil status, a man and a woman need to appear before the officer for the purpose of concluding marriage and give their respective consent to enter into marriage. Hence, the phrase civil marriage basically refers to the fact that the marriage has been solemnized in front of an officer who is empowered to accept the consent of parties wishing to enter into marriage.
The 1960 Ethiopian Civil Code provides for the establishment and the duties of the office of civil status. However, implementations of the provisions which deal with this office have been made to wait for the issuance of an Order to be published in the Negarit Gazeta, which has never come into life. As a result, currently there is no established office of civil status. In municipal areas, the functions of the officer of civil status are assumed and performed by the municipalities. For instance in Addis Ababa the offices of the Kifle ketemas are the ones who oversee the performance of civil marriages.
In order to conclude civil marriage, there are certain formalities and requirements which are stipulated by the RFC. The first formality is that of a residence. Pursuant to article 22 of the code, civil marriage is concluded before the officer of civil status of the place where one of the future spouses or one of the ascendants or close relatives of one of them has established a residence by continuously living there for not less than six months before the conclusion of the marriage. Hence, the solemnization of a civil marriage is to be conducted in the place in which one of the aforementioned has established a residence for a minimum of six months. Residence, on the other hand is defined by the Civil Code as the place where a person normally resides. The code also tries to distinguish between residing in a place and a mere sojourn in a particular place. In determining existence of a residence, the notion of normality and intention of the person concerned are vital. In addition to this, article 175/2 requires staying in a particular place for a minimum of three months to constitute residence. ‘Although the code does not settle the point, it seems that the period of three months must be uninterrupted.’ However, when it is for the purpose of conclusion of marriage, this article of the Civil Code is qualified by virtue of article 22 of the RFC. As a result, those persons enumerated under article 22 of the RFC have to reside in the place for a continuous period of six months. This article also answers the question as to whether the period should be interrupted or uninterrupted one.
The other formality is that of giving notice. The RFC requires the future spouses to inform the officer of Civil Status of their intention to conclude marriage not less than a month before the celebration of the marriage. The purpose of notifying the officer is to make sure that there are no impediments to the conclusion of marriage and to allow anyone who want to oppose to the marriage to do so in accordance with the law. This can be understood from the requirement on the part of the officer to publicize the notification stipulated under the same article as well as the subsequent articles of the Code.
The process of notification and waiting period (or the formal requirements for conclusion of marriage before an officer of civil status) are available in other countries’ laws as well. For instance, all states in America prescribe some formalities for conclusion of marriage. And the regulations are categorized into two classes: licensure and solemnization.
As Ellman et al put it:
‘All states have marriage license laws. Applicants provide certain information to a governmental office concerning age, prior relationship by blood or marriage, previous marriage etc. This information helps in compiling vital statistics and could facilitate enforcement of substantive marriage regulations by permitting the clerk to screen out ineligible applicants. For example, if the application revealed the bride and groom were siblings, the license would be denied under laws prohibiting incestuous marriages. In practice, the license law does little to restrain intentional violation of substantive regulations, because little effort is made to confirm the truth of the license application information.’
On the issue of waiting period, the authors have noted that:
‘Most states impose a waiting period (of either 3 or 5 days), either between the application and issuance of the license or between issuance and performance of the ceremony. …the waiting period requirement as well as the entire licensing procedure is explained as impressing upon the parties the seriousness of the entry into marriage.’
The 1949 Marriage Act of the UK also stipulates some formalities for conclusion of marriage. Under this law, the parties are required to give notice in prescribed form to their local superintendent registrar (in whose area they must have been resident for seven days preceding the giving of notice) of their intention to marry. Here one should note the difference in the requirement to constitute a residence under the Marriage Act of the UK with that of the Ethiopian Revised Family Code. Under the 1949 Family Act of the UK, the requirement is only seven days while in the Ethiopian context, the parties have to reside in that particular area for a period not less than six months. In addition to the notice requirement, the parties are also expected to provide a declaration that there are believed to be no lawful impediments to the marriage.
Once these preliminary formalities are fulfilled and the work of publicizing the intention of the parties to marry has been made by the civil status officer, the next step is the celebration (solemnization) of marriage. Celebration of marriage is to be made publicly in the presence of the future spouses and two witnesses for each of the future spouses. One requirement stipulated under article 25 of the RFC is that the future spouses have to personally appear for the solemnization process. In connection to this requirement, the issue of proxy marriages can be raised.
The question of whether marriage can be concluded by proxy is of little practical importance in modern times. However, there may be circumstances which would necessitate the use of representation for marriage. Historically, the late Roman law and the Canon law allowed in a clear manner celebration of marriage by proxy. In the words of Pomponius:
A man who was away from home might marry a woman by letter or messenger, but marriage could not be contracted in this manner by a woman who was absent from the man's place of residence. The reason for this difference between the man and the woman resulted from the requirement of the Roman law that the wife be led to the husband's home.
The Code Napoleon, on the other, does not prohibit proxy marriage in express terms. It simply puts an obligation on the officer of civil status to read the parties the requirement of the law with respect to marriage and the mutual right and duties of the parties which emanates from the marriage. In order to achieve this purpose, it seems that the parties need to personally be present at the ceremony. However, some French writers held the view that in the absence of express provision which made marriage concluded by proxy void, it should be considered as valid.
Marriage by representation is necessary when one of the parties cannot be present for the ceremony. ‘While its most prominent use has been in wartime with one party on duty overseas, sometimes it is used by prisoners.’ The First World War was the main reason for many European countries to allow in their laws for the conclusion of marriage through representation.
The French Law of April 4, 1915 authorized soldiers and sailors with the colors to marry for grave reasons by proxy with the permission of the minister of justice and of the minister of war or the minister of the navy…. Soldiers and sailors, employees of the Army and Navy, and persons in the service of the Army and Navy, were authorized in Italy to marry by proxy by a decree of June 24, 1915.
Considering the need to conclude marriage by representation, the Civil Code of 1960 as well as the RFC allowed by way of exception for the conclusion of marriage through representation. One should note here that in principle each of the future spouses are required to appear personally and give their consent to the marriage at the time and place of celebration. However, if one of the parties, for serious cause, could not be personally present, marriage by representation may be allowed by representation. Here one question that needs to be addressed is, what does it mean by ‘serious cause’?
The RFC does not go beyond requiring the existence of a serious cause and the existence of consent of the represented person and define what a serious cause could be. We can attempt to identify what a serious cause is by looking into the laws of other countries and the reason for these countries to allow marriage by proxy. As discussed above, many countries allow marriage by proxy when one of the spouses are away on military work or in the navy and sometimes also for prisoners, among others. Hence, one can conclude that ‘serious cause’ in the Ethiopian Family Code will also be interpreted in light of these grounds.
The other formality incorporated under article 25 of the RFC is the obligation on the witnesses to declare, under oath, that the essential conditions for marriage are fulfilled. As mentioned earlier, one purpose of imposing these formality requirements is to make sure that the substantive requirements for conclusion of marriage are fulfilled. One way of achieving this purpose is by requesting the witnesses to confirm under oath the fulfillment of these conditions. As can be grasped from the next sub-article, the taking of the oath has its own consequences, and the consequences should be explained to the witnesses by the Officer.
The third formality requirement for celebration of civil marriages is that the future spouses need to declare openly that they have consented to enter into the marriage. Marriage is an institution which is to be entered into by the parties of their free will. The existence of their free will has to be openly communicated to the officer of civil status. Apart from the open communication of their will, the future spouses as well as the witnesses are required to sign in the register of the Civil Status.
After the fulfillment of all the above mentioned formalities, what is left is for the Officer of civil status to pronounce them united in marriage and issue a certificate of marriage.
The second type of marriage which is given recognition by the RFC is religious marriage. Pursuant to article 3 of the RFC, a religious marriage takes place when a man and a woman have performed such acts or rites as deemed to constitute a valid marriage by their religion or by the religion of one of them. As a result, the formal requirements for the conclusion of religious marriage are dictated by the religion itself. This is further corroborated by article 26/1. Hence, the conclusion of the religious marriage as well as the formalities to be followed is as prescribed by the concerned religion. However, one should note here that the essential conditions that are stipulated by the RFC need to be observed whatever the manner of celebration of marriage is.
Ethiopia is a nation which is believed to be home for more than eighty nationalitites. These different nationalitites have their own peculiar customs. The diversity in the customs of the people has been recognized by the 1995 FDRE Constitution. Particularly, Article 34/4 of the Constitution stipulates for the enactment of a specific law which gives recognition to marriage concluded under systems of religious or customary laws. In light of this obligation, the RFC gives the future spouses the option to conclude their marriage in accordance with customary practices.
Pursuant to Article 4 of the RFC marriage according to custom takes place when a man and a woman have performed such rites as deemed to constitute valid marriage by the custom of the community in which they live or by the custom of the community to which they belong or to which one of them belong. One important thing which needs to be noted here is that for a marriage to be concluded according to custom, the custom referred to is of three: the custom of the community in which they live, or the custom of the community to which both future spouses belong or alternatively to which one of them belong. This is in contradistinction to the Civil Code of 1960. Article 580 of the Civil Code considers a marriage to be customary marriage when it is concluded under the rules of the community to which the future spouses belong or to which one of them belongs. Defining customary marriage in such manner has the effect of excluding marriages concluded by two persons belonging to a certain tribe but the marriage was concluded using the rites of a different tribe. For instance if a man from the Oromo tribe concludes marriage with a woman from the Tigray tribe and the marriage was concluded in Amhara region by fulfilling the rites of the Amhara tribe, such marriage will not be considered as a customary marriage concluded by fulfilling the requirements of the Amhara tribe, because neither of the spouses belong to that tribe. Considering the shortcoming of article 580 of the Civil Code, the RFC included the custom of the community in which the parties are living at the time of conclusion of marriage.
The conclusion of the marriage as well as the formalities, hence, is to be prescribed by the concerned community. Here also note should be made to the effect that the customary marriages also need to observe the essential conditions of marriage stipulated by the RFC.
Marriage Celebrated Abroad
The other new introduction in the RFC is the recognition of marriages that are celebrated abroad. This is necessitated by the increase in the movement of people from one place to another. Not recognizing a marriage which is concluded by fulfilling the legal requirements of the place of celebration would result in unfair and undesirable consequences. As a result, article 5 of RFC provides for the recognition of marriages which are celebrated abroad as valid in Ethiopia. Here, two things are worth mentioning. The marriage whose recognition is sought in Ethiopia has to be concluded by fulfilling the legal requirements of the place of celebration. This can be gathered from the phrase ‘…in accordance with the law of the place of celebration…’. Hence, when recognition of the marriage is sought, it has to first be identified whether the legal requirements of the place of celebration were fulfilled. Moreover, the law puts public morality of the Ethiopian people as a limitation on the recognition of marriages celebrated abroad. That is to say, the foreign marriage will be recognized in Ethiopia only in respect of its formality and not as to its substance. A good example here is the case of same-sex marriage. Some western countries and one African country have made same-sex marriage lawful. Hence same-sex marriages could be concluded lawfully in these countries. However, these types of marriages cannot be recognized in Ethiopia for different grounds. First, the law, though indirectly, considers marriage to be a union between a man and a woman, not between the same sexes. Hence, same-sex marriage does not fulfill the definitional requirement of marriage under Ethiopian law. Secondly, article 629 of the new criminal Code made sexual activity and any indecent act with persons of the same sex a crime. For stronger reason, marriage between same sexes will be prohibited. In addition to this, article 5 of the RFC provides for the recognition of marriages celebrated abroad as far as doing so will not be contrary to public morality. The ground for criminalizing sexual activity between same sexes is that it is repugnant to the morality of the Ethiopian people. For the grounds discussed above, marriage between same sexes will not be recognized in Ethiopia.
There is no generally accepted definition of family law. ‘Family law is usually seen as the law governing the relationship between children and parents, and between adults in close emotional relationships’. Many areas of law can have an impact on family life: tax laws, immigration laws as well as insurance laws have great connection with family law. As Dewar noted:
Most legal disciplines would claim to possess at least one of two forms of coherence. The first stems from the organizing legal concept from which the discipline in question derives its name: ‘contract’, ‘negligence’, ‘trust’. The second relates to the set of ‘real world’ problems with which the discipline is concerned: labor relations, housing, land use, commerce, government and administration. At first glance, it would seem that the area of study designated as family law possesses a coherence of the second sort. After all, the term ‘family’ has in itself no legal significance (although attempts are often made to define the family for legal purposes); and the subject usually comprises a mixed bag of legal rules and concepts, such as those concerned with marriage, divorce, parents and children and property, each possessing a different historical origin and pattern of development. The only justification for studying them together is that they all in some way concern the family, a social phenomenon constituted outside the categories of the law. For this reason, family law has grown over the years to include parts of other legal disciplines of relevance to the family, such as property, criminal and housing law, taxation, social security, evidence and procedure; as well as incorporating legal aspects of phenomena thought to have a ‘family’ connection, such as domestic violence, child abuse, marital rape, surrogacy, homelessness and pensions (to name a few).
In spite of this, can it still be said that family law is a coherent area of study? It has already been suggested that it cannot satisfy the first criterion of coherence mentioned above; and if it were to satisfy the second, the subject would be a good deal broader than it is now, probably unmanageable so. For if we were really to take the family as the starting point, and were to consider all areas of law relevant to the family, we would want to include much that is not currently considered part of the subject. For example, we might wish to consider the welfare state, the fiscal system and the labor market in more detail than is customary; and we may also want to consider the areas of education and health services. These are all areas of relevance to families and in which the family is encountered as a necessary relay in the implementation of programs of social action. But family law has not been interpreted as broadly as this. Instead, it focuses primarily on the more traditional question of status and is thus primarily concerned with the means by which status is conferred, such as marriage, parenthood and cohabitation, and on the means by which status may alter, such as divorce or state action to remove children from parents. More recently, it has become concerned with the problem of individuals abused by members of their own family.
[Excerpts from: John Dewar, Law and the Family, 2nd ed, Butterworths, London, 1992, p.1-2]
Rationale Behind Protection and Regulation of the Family
There are various reasons for regulating and protecting the family through the adoption of legislative interventions. Before looking at these reasons it is necessary to define a family. The legal definition of family is not a unitary concept. However, we can find some suggested definitions.
Planiol defines a family as a group of persons who are united by marriage, by filiation or even, but exceptionally, by adoption. Another more or less similar definition is given by Murdok. In that definition, family is considered as ' a social group characterized by common residence, economic cooperation, and reproduction. It includes adults of both sexes, at least two of whom maintain a socially approved sexual relationship, and one and more children, own or adopted, of the sexually cohabiting adults.'
From the definitions given above, one can categorize the family into nuclear and extended family. The first and basic type of family organization is the nuclear family.
The nuclear family basically consists of a married man and woman with their offspring. ‘The nuclear family is a universal human social grouping. Either as the sole prevailing form of the family or as the basic unit from which more complex familial forms are compounded, it existed as a distinct and strongly functional group in every known society.’
An extended family, on the other hand, consists of two or more nuclear families affiliated through an extension of the parent-child relationship rather than of the husband-wife relationship, i.e, by joining the nuclear family of a married adult to that of his parents.
This way of defining the family has been criticized recently by many, especially by authors in the western society, for its lack of accommodating the changes in the circumstances and societal values. As will be seen shortly, establishing a family relationship will have its own effects, like for instances on issues of child custody, maintenance and other rights and obligations. Defining family in the above manner restricts persons engaged in nontraditional relationships from having those rights and obligations. (Harvard Law Review, vol 104, p 1642-1659)
The family is a very important constitutive part of a society. It has natural, economic as well as social importance. ‘The state of the weakness and of destitution in which the child is born, the amount and length of care he needs, impose upon his parents duties which are not fulfilled in one day and which create the solid foundation of all of the family relation.’
The family is the nucleus of the society, and hence much depends on its safety and security. As Planiol correctly notes, ‘the small family group is the most essential element of all those which compose the great agglomerations of men which are called nations. The family is the irreducible nucleus. And the whole is worth what it itself is worth. When it is impaired or dissolved, all the rest crumbles.’ Though the family may contain only few people, the impact that this unit has on the whole society is great. Factors affecting a single family will later on have the effect of affecting the whole society.
Due to the fact that the marital status as well as the family entails community rights and obligations far beyond those implicit in the ordinary civil contract, it is conceded that the states may prescribe the conditions on which the status may be assumed. As a result, marriage laws are subject to the control of the state government; and the interest of the state in the marriage of its citizens has long been recognized. 'The state, it is said, is a party to every marriage. This means simply that the state is interested in the well ordered regulation of the family organization of the persons within its borders.'
The state uses different means to regulate and control the formation as well as the effects of forming a family. One basic means of doing so is through legislations. Laws have various functions within a state.
'Laws do more than distribute rights, responsibilities, and punishments. Laws help to shape the public meanings of important institutions, including marriage and family. The best interdisciplinary studies of institutions conclude that social institutions are shaped and constituted by their shared public meanings. According to Nobel Prize winner Douglass North, institutions perform three unique tasks. They establish public norms or rules of the game that frame a particular domain of human life. They broadcast these shared meanings to society. Finally, they shape social conduct and relationships through these authoritative norms.
Hence, the state protects and regulates the family by using its legislative power.
Sources of Family Relationships
There are three sources of family relationships namely, marriage, filiation and adoption. The status of the persons as well as the rights and obligations of the persons differs with the difference in the source of the relationship. This section deals with the different sources of family relationships and the effects of the relationships.
Relationship by consanguinity
Relationship by consanguinity results from the birth. It is ‘the tie which exists between two persons, such as the son and the father, the grandson and the grandfather; or those who descend from a common ancestor, such as two brothers, or two cousins.’ Hence, relationship by consanguinity is a natural fact which is derived from birth.
Excerpts from Planiol pages 387-389
The series of relatives who descend from each other form what is called a line. It is a direct relationship: it is represented by a straight line going from one relative to the other, no matter how many intermediaries there may be. As to the relationship which unites two relatives descending from a common ancestor, it is called collateral relationship: its graphic relationship is formed by an angle. The two relatives occupy the inferior extremity of the two sides and the common author is at the top. Two collateral relatives are thus not in the same line; they form part of two different lines which started from the common author, who represents the point where the junction is made; the two lines travel side by side, which fact explains the word 'collateral'; each of the two relatives is, in regard to the other, in a line parallel to his own, collateralis. …
In each line relationship is counted by degrees, i.e. by generation. So the son and the father are related in the first degree; the grandson and the grandfather in the second degree, and so on.
Method of calculation of relatives in the direct line is easy.: there are as many degrees as there are generations going from one relative to the other.
When it comes to collateral relationship there are two ways of computation. The one used by the civil law count the number of generations in the two lines by departing from the common ancestors and by adding the two series of degrees. Thus, two brothers are related in the second degree (one generation in each branch); an uncle and his nephew are related in the third degree….in the Canon law another way is used to compute the degrees: the generations are counted only on one side. When the two lines are equal, either may be taken. When they are not equal, the longest one of the two is chosen and no attention is paid to the other. The result of this Canonical computation is that two first cousins are related in the second degree, while according to the civilian computation they are related in the fourth degree…..
To reach to the degree of relationship between persons related in the direct line, we simply count the number of lines between them. Here, the grandfather and the grandchild are related in the third degree in the direct line.
In calculating the degree of relationship in the collateral line, there are two way, which will lead to different results.
When we look into the Ethiopian Civil Code of 1960, it does not govern how the relationship in the direct line is to be computed. Article 551 tries to give some highlight on how the computation of relationship in the direct line is to be conducted. The Amharic version of the Code states as follows
የስጋ ዝምድና አቆጣጠር የጋራ ከሆነው የግንድ ወላጅ የዝምድና ደረጃ ጀምሮ ግራና ቀኝ ካለው ትውልድ መስመር እስከ ሰባት ትውልድ ድረስ ነው፡፡
However, this article only tells us that calculation of degree of relationship in consanguial line is to be done by taking the common ancestor as a bench mark.
Relationship by Affinity
Relationship by affinity is created as a result of marriage. 'Relatives through marriage are persons who are not relatives, but which join the family by means of a marriage.' When a marriage is concluded, the relationship is formed between one of the spouses with the blood relatives of the other spouse. The woman who marries becomes the daughter in law (by marriage) of the father and mother of the husband and the husband becomes the son in law of the mother and father of the wife. 'The two spouses are considered as being only one, so that all the relationships of the one become, by the effects of marriage, common to the other.' One thing which needs to be noted here is the fact that the relationship created does not go beyond this. That means, a relationship does not exist between the relatives of one spouse with the relatives of the other spouse.
Relationship by Adoption
Relationship by adoption is created as a result of a special contract between the adopter and the original families of the adopted child. Unlike blood relationship, it is a fictitious relationship which resulted from the agreement of the parties to the adoption contract. However, it is also an imitation of the real relationship.
Effect of Family Relationship
There are various effects which resulted from the relationship. Relationships give rights; they also create obligations, and also carry incapacities. Hence, we can talk about three effects of a relationship: creation of rights, creation of obligations and making the related persons incapable of performing some juridical acts.
Rights emanating from a relationship:- relationship results in the right of the relatives to take the estate of the deceased relative. That is to say, a right of succession is one of the effects of a family relationship. Secondly, there is also the right of destitute relatives to get maintenance from the other relatives. Parents will also have a right over the person and the estate of their children. For instance, article 198 of the RFC provides that the obligation to supply maintenance exists between ascendants and descendants and also between persons who are related by affinity in the direct line.
Obligations emanating from relationship: there are also various obligations which will subsist among the relatives. The first obligation is that of alimony. Relatives have the obligation to provide alimony for the destitute relatives who cannot have their own means of income. Moreover, there is also the duty on the parents to take custody and raise their children. In this regard, article 219 of the RFC puts an obligation on the father and mother of the minor child to be the joint guardian and tutors during the life time of their marriage. Taking custody of children also involves making decisions in respect of the health, education as well as social contacts of the child. Articles 255 and the following articles of the RFC provide by way of obligation on the parents to take care of the health, residence, education as well as social contact of the minor child. On top of this, there may be property inherited by the child. The parents or in their absence, the ascendants will have the obligation to administer the property on behalf of the child.
Apart from the above mentioned duties and rights, relationships may also result in incapacities of the persons involved. The law prohibits marriage between close relatives. The incapacity to marry is one type of incapacity resulting from relationship. Under 32 of the RFC as well as the regional family codes relationship is provided as one essential condition for the conclusion of marriage.
Putting the Conflict in Perspective
Multi-ethnic societies can survive only if all respective groups within the polity feel themselves as winners.
One of the most contested issues in the public discourse of Ethiopian politics remains the difficulty one gets in interpreting state failure in the twentieth century. While there is a general consensus about the fact that both the Imperial (1930-1974) and the military regimes (1974-1991) failed to address among other things central political and economic issues, there is less consensus on the causes of state failure and in interpreting the conflict. While some illustrate the cause of the conflict as resulting from ‘Biherawi chikona’ or ‘national oppression’ others contend that the conflict is merely political, not ethnic, as the bone of contention is state power. The author contends that there is no merit in reducing each factor in diagnosing the conflict, for each explains to a certain degree the character of the Ethiopian state in the 20th century and hence urges for a broader comprehension of the issues. In a nutshell, however, it could be stated that the state failure could be analyzed in terms of failing to build a multicultural state (touches all spheres of the state, political power, resources, identity and language issues) from all the diversities that the modern state has brought together during the second half of the 19th century and the relevance of federalism as an idea for forging unity out of diversity springs from this.
A majority of the authors seem to point that the over centralization of power and economic resources by the ‘dominant’ group, principally from Showa which despite genealogical mixtures defined itself and the state along this narrow perspective, and the subsequent marginalisation of others should be considered as the underlying factor in exacerbating the prolonged war in Ethiopia. The title of Markakis’s book about the politics in the Horn just speaks for itself. A closer observation of these writers seems to suggest that the outbreak of ethnicity in public discourse is the result of this marginalization and hence can not be considered as a factor on its own to analyze the conflict: to be specific, ethnicity is the consequence, not the cause.
Markakis argues, ‘As the assertion of ethnic identity and aspirations do not always attain political expression, we need to inquire into the circumstances that encourage the politicization of ethnicity and lead to ethnic conflict.’ The gist of his thesis is that the conflict is political because the bone of contention is state power.
Monopolization of political power meant that members of excluded ethnic groups lacked access to state power. This has serious implications. Where the state controls both the production and distribution of material and social resources, exclusion from state power is tantamount to material and social deprivation. Because it controls the production and distribution of material and social resources, the state has become the focus of conflict. Access to state power is essential for the welfare of its subjects, but such access has never been equally available at all. Since those who control the state have used its power to defend their own privileged position, the state has become both the object of the conflict and the principal means by which it is waged. Dissident groups seek to restructure the state in order to gain access to its power or, failing that, to gain autonomy or independence. The ultimate goal of most parties to the conflict, of course, is to enlarge their share of the resources commanded by the state. This is the real bone of contention and the root cause of the conflict in the Horn.
Markakis casts doubt on the characterization of the conflict as ethnic. He writes ‘ethnicity certainly is a factor in the conflict, since in nearly all cases the opposing parties belong to groups with different ethnic identities. Whether such differences in themselves are sufficient cause for conflict is debatable and to define the conflict a priori as ethnic is questionable’. Clapham’s position appears to be even stronger in this regard. He wrote that it is essential to point out that many of the current and recent conflicts have not in any meaningful sense been ethnic or have only included ethnicity as one element among others.
Jon Abbink equally argues ‘in line with recent anthropological and political science insights into the discourse of ethnicity that has emerged is usually an ideological ploy for other interests advanced by elite groups and that ethnicity in itself does not have ontological status as an independent social fact.... ethnic identity is often being used to construct social differences that were not there before’. By stating this Abbink joins the instrumentalists and the Modernists.
Clapham, Abbink and Markakis then agree that many of the recent conflicts cannot be categorized as ethnic at all and if the conflict manifested itself as ethnic, ethnicity is simply an instrument for gaining access to political power and resources. It is important to emphasize once again that according to these authorities the crisis is explained primarily in terms of political power: the centralization of power by what may be defined as a dominant elite and subsequently the state is defined as ‘ethnocratic’ one, that is, the monopolization of power by a few or one ethnic group and consequent exclusion of others.
Among such contributory factors are: the forced incorporation of the several ethno-linguistic groups and the coming to an end of the autonomous kings; the cultural, linguistic and religious implications of the narrowly defined Ethiopian identity, factors mainly related to the process of state formation in the 19th century; the relatively uneven economic development of the several provinces and the failure of the 1974 Revolution.
The process of centralization, some would prefer to call it “nation building” was not without consequences. Firstly, the incorporation of the South, the Southwest and the Eastern sides from their previously autonomous position to complete absorption meant that the notion of the state, its values, institutions and culture were imposed on the incorporated kingdoms. Secondly, it brought about all sorts of diversities in terms of religion, language, tradition and culture. However, as the state failed to accommodate this diversity, the religious, lingual, cultural as well as political and economic dominance gave birth to the “question of nationalities.” Thirdly, the state became extremely centralized at the expense of regional rulers. The political marginalization of the bulk of the community led to civil wars whose cause fundamentally differed from earlier ones. This time resistance not only called for state reform but even at times challenged the state itself. Several studies hinted that conflict in traditional Ethiopia was mainly an instrument for asserting some level of regional autonomy and not for upsetting the whole system, nor was it for separation. “God can not be blamed, the King can not be accused” was the main tenet. The opposition, whatever form it took, mainly looked for adjustment and restoration of violated rights like better administration, lower taxes, respect for local autonomy and reduction of corruption. By and large the legitimacy of the Monarch and its ideological roots were not attacked. In the 1960s, however, things started to change. The new forms of resistance that took shape in the form of “national liberation fronts” changed significantly in terms of leadership, social composition, motivation and ideological orientations.
Explaining the Crisis
With the emergence of centralized administration, Ethiopia faced serious state crisis.
Attempts at explaining the cause of the state crisis have not only been less satisfactory but are also found to be diverse ranging from those who even today consider it was all a normal process of “nation building” and hence consider the liberation struggle as a form of tribalism to the instrumentalists that focus on the concentration of political and economic resources at the center as a core source of tension and that emphasize the proliferation of ethnicity as an erroneous comprehension of political and economic deprivation and the ruling party- Ethiopian Peoples Revolutionary Democratic Front (EPRDF), a product of the 1960s Ethiopian Student Movement that focused on the “operation of nationalities,” that is, a ruling elite dominantly from one nationality controlling power, resources and narrowly defining the values and institutions of the state as a main cause. A few political elites even went further to state that it must be seen as a form of “internal colonialism.” Needless to say all approaches seem to have their own serious limitations.
Certainly the advocates of the “nation building” process and the instrumentalists fail to grasp one of the central issues of the debate in diverse societies like Ethiopia. The Ethiopian state that emerged as a result of the centralizing trend was qualitatively different from historic Ethiopia not only in terms of its territorial size but also in terms of ethno-linguistic composition and religious diversity. The majority of the ethno-linguistic groups incorporated were told in no ambiguous terms to assimilate into this state. Rather than attempting to forge a state from the newly introduced diversity, the regimes imposed a narrowly defined state, whose cultural, social, political and religious foundation and its institutions failed to reflect the existing diversity on the ground. It is not surprising then that the legitimacy of the government, its institutions and the values upon which it is established remain one of the sources of tension and at times the cause of its terminal crisis. In other words, the challenging issue is how to constitute a legitimate government from all the ethno-linguistic groups that do not squarely fit the usual notion of national majorities versus national minorities. The traditional “nation-state” project certainly assumes the existence of a dominant national group and in country’s like Ethiopia where there is no such clear dominant majority, it becomes a mask for the “majority’s” culture, language, religion to become the national culture, language or religion. None other than Paul and Clapham have understood the importance and role of tradition in societies like Ethiopia.
To study tradition is not simply to study what happened long ago: it is to study an interlocking system of ideas and attitudes which have been held by a people over a long period, and which continues to affect their ideas and behavior in a large number of ways. Tradition is always with us; it may be changed, partly destroyed, or adapted by education or by social and economic development, but it can never be abolished...it is a force that binds a people together and gives them a national coherence and identity...
Perhaps the absence of a numerical majority that dominates the political process at the center has a lot to explain for the persisting regime instability, the interethnic tension and rivalry among the groups for exclusive control of power. One need to note how other multicultural societies like India and Switzerland faced this reality.
Thus depending on the strength of the claims, identity and history of minorities, however, decentralized or federal system of government appears to be the genuine solution if the state is to survive by accommodating diverse groups while maintaining unity and avoiding fragmentation.
There is additional crucial point that the “nation builders” and the instrumentalists fail to realize. Post Cold War developments as well as empirical evidence from multicultural societies hints that identity does not necessarily vanish from the face of the political discourse even if political and economic situations are favorably accommodative, let alone when it is a state target of destruction under the guise of “nation- building.” Thus, while the nation builders have a point as they emphasize on the shared values and the difficulties of integration and the instrumentalists by focusing on the economic and political factors, two of the core causes of political instability, they often fail to consider the identity factor as a cause of tension in multicultural societies.
“Nation-building” in Plural Societies and the Issue of Identity and Values of the State
Part of the reason why the “nation building” project in multiethnic/multicultural/multinational societies becomes problematic is that the process is based on a wrong transplantation of Western ideas that assume the existence of a dominant national group that commands clear democratic majority. In many parts of Africa including the Sudan and Ethiopia, the nation building project aimed at politically and culturally integrating the various groups into a narrowly defined state values: in the case of the former Arabic language and Islam and in the latter Amharic language and Christian religion. This raises conflicting perspectives on the identity of the state. In the Sudan for example, the dominant elite mostly from the North desires the country to be Arab and Muslim while the Southern elite needs it to be African and De- Arabized or at least heterogeneous. Interestingly both dominant elite groups (from both countries) that defined such state values by equating themselves with the state and by marginalizing others do not constitute a majority. Thus it is not only based on a wrong transplantation of Western ideas but it is also undemocratic nation building project that was bound to fall, only waiting for the opportune moment to happen. The attempt to homogenize also contradicts the multicultural nature of these countries and negates the idea of mutual recognition. This has implications in the establishment of public institutions, in the design of national symbols such as the flag, national anthem, currency and values of the state. As one of the prominent experts on federalism aptly wrote, in a diverse society, the most essential element for stability and order is the acceptance of the value of diversity and of the possibility of multiple loyalties expressed through the establishment of constituent units of government with genuine autonomy for self rule over those matters most important to their distinct diversity. Thus for the nation building to be effective, the first measure that the countries (particularly the Sudan) need to do is to abandon the concept of basing such a process on one culture and religion and embrace multiculturalism as this will open a space for mutual recognition and multiple identity which is an important infrastructure for federalism.
The National Oppression Thesis and the Question of Nationalities
Distinct from the instrumentalist, colonial and Greater Ethiopia version of the story came the view that holds that Ethiopia should be viewed as a multicultural state and the nationalities need to be treated equally and have to be ‘liberated from’ the degrading situation they were put in, be it in the south or the north. But despite this general foundation and common understanding, the authors of this view could not agree on further details. As a result, it gave rise to various divisions and sub-divisions. The ‘national oppression’ thesis came into the Ethiopian political discourse with the ascendancy of the Ethiopian Student Movement (ESM) in the 1960s.
The events of the 1960s and 1970s were particularly crucial and still have repercussions on the present state structure and the ideology behind it. For instance, the major political parties including those in power as well as in exile claim their origin to this particular moment in history. Frustrated by stagnation of the economy and the imperial regime’s inability to bring any change, young, radical and leftist university students organized themselves both at home and abroad to overthrow the regime and the ESM was a tool. The ESM was mainly a multinational force whose members were drawn from all the varied groups of Ethiopia. Their slogans ‘land to the tiller,’ ‘national equality,’ and ‘social justice’ were very popular in their challenge to the imperial regime. MEISON since 1968 and EPRP since 1972, which dominated the country’s politics in the early days of the Ethiopian Revolution, were direct offspring of the ESM. With the exception of EDU, almost all of the Ethiopian opposition forces derived their origins and inspiration from the student movement, and the central premises of that movement was that Ethiopia constituted a ‘prison of nationalities.’ Ethiopia was portrayed for the first time as a multicultural country and the movement clearly acknowledged that the nationalities should be treated equally.
The gist of the view is that ESM believed there was ‘one oppressor nation’ whose political system, culture and language dominated the others and on the other, many ‘oppressed nationalities’ who were politically and economically marginalized, culturally and linguistically dominated. The (Showan) Amhara was identified as ‘oppressor nation’ and the rest the ‘oppressed nationalities.’ Wallelign Mekonnen’s prominent article, a student leader killed in 1973 was a breakthrough in this regard. He wrote,
Is it not simply Amhara and to a certain extent Amhara-Tigre supremacy? Ask anybody what Ethiopian culture is? Ask anybody what the Ethiopian language is? Ask anybody what Ethiopian religion is? Ask anybody what the Ethiopian dress is? It is either Amhara or Amhara Tigray. To be a genuine Ethiopian one has to speak Amharic, to listen to Amharic music, to accept Orthodox Christianity.
This was a fundamental challenge to the nation-building project and to the then discourse of multicultural Ethiopia. A challenge to the ‘one Ethiopia, one nation’ thesis. This paved the way to the nation, nationality right to self-determination.
However, despite the fact that all were inspired by leftist orientations and even if they shared the manner in which the nationality question was to be resolved, particularly the EPRP and MEISON, they ended up in becoming one another’s worst enemy. The dispute clearly remained a struggle for power between rivals. Despite their adherence to the same political goals, the two oldest political organizations in Ethiopia became bitter enemies. They fought each other more than they fought the military regime. By 1973, following the Berlin conference, the split was getting clearer and the amorphous student movement evolved into two separate political parties: EPRP and MEISON. From then on the issue of nationalities remained unresolved and an Achilles heel to all political parties.
As a solution to the ‘national oppression’ described by the ESM there emerged contending views. Those who advocated for the regional autonomy formula as in the Waz League, those like MEISON and EPRP that in principle acknowledged the existence of ‘national oppression’ but whose dominant orientation was towards unity and they saw the struggle of the oppressed people as indivisible, a solution to be sought within class rather than along national lines and the third set constituted all the ethno-nationalist movements who preferred to define their struggle on the basis of ‘nationality’ than class. The last group held that a new and democratic Ethiopia could only be constructed through the voluntary and consensual association of its parts. It is important to mention that apart from sharing the view that the nationality question needs to be addressed, the exact meaning and scope of this vague clause was never clear. It is hardly possible that all groups meant the same thing. Even within the TPLF, the hard core of the ruling party, at the first phase of its evolution, it meant the self-determination of Tigray, within a democratic and multicultural context of Ethiopia and that implied self-autonomy, fair distribution of power and resources and equal recognition of culture, religion and language. Yet as included in the TPLF manifesto of 1976, secession was not ruled out. This position was abandoned for a long time and again came back with the establishment of MLLT (Marxist Leninist League Tigray) in 1986 and with it national self-determination up to and including secession, hence Article 39 of the federal Constitution.
As was noted already, in the end, when the multinational parties fall into crisis partly due to internal problems and partly because the Derg annihilated them in turns, the national liberation movements emerged as the only viable forces to challenge the Derg and as a dominant political force particularly in the post 1991 Derg period.
EPRDF, the ruling party, as a champion of the nationalities right to self-determination in a bid to liberate the nationalities from ‘national oppression’ interprets the crisis as something resulting from national oppression. It considers the political, economic and cultural factors as something resulting from national oppression, a deliberate design of Showan Amhara elite. It considers both regimes that have defined the much broader notion of Ethiopian nationalism narrowly, structured the state accordingly and left the others at their mercy. The centralization of power and economic resources at the center is, therefore, viewed as a secondary rather than primary cause of the state crisis. Based on this premise, the ruling party defined its struggle not on the basis of class or multinational principles but as a nationalist one. It believed that emphasizing the nationality question was the right strategy to rally the oppressed people by rejecting the class-based approach of the ESM that EPRP and MEISON chose to follow. It is from this that the argument for national self-determination of nationalities and structuring the state based on a federal system that grants at least the major nationalities their own constituent states springs from.
The National Oppression thesis is shared by several parties and leaders of nationalist movements and we now turn to some of them. One of the pioneer movements that long advocated the ‘national oppression’ thesis after the collapse of the ESM was the TPLF.
The Tigrayan Cause
Historical, economic and cultural factors contributed to the prominence of the ‘nationality question’ in Tigray. Tigray was always a provincial contestant to the throne and by and large was ruled by its own nobility. Although the Tigrayans shared a long common history, church and culture with the Amhara, after the death of Yohannes in 1889, Menlik seized the Solomonic title and turned the course of the empire to the South. His agreement with Italy to partition Tigray (since 1890 Eritrea, that constituted part of historic Ethiopia was alienated and ceded to the Italians) created a bitter legacy and thereafter the region was marginalized in political and economic terms.
Although it was not organized on a nationalist basis against the imperial regime, the Rebellion in Tigray in 1943 shows how the Showan elite was meddling even at local level to further weaken its political rival. Slowly but surely Showa was making sure that its rival remains on its low ebb. With the banning of the army of notables and the centralization of the taxation system, Tigrayan notables’ economic and political power was eroded and they lost what Gebru calls ‘their corporate identity.’ After that they only survived as individuals and with the ‘grace’ they obtained from Showa. Though the rivalry between Yohannes’s heirs Gugsa and Ras Seyoum was a catalyst in weakening Tigray, each linked to the Showan dynasty through marriage and administering different parts of Tigray, their crisis also paved the way for manipulation and meddling. After Gugsa’s death his son Haile Selassie, who saw his rival Seyoum favored by the Emperor defected and joined the invading Italian army. After 1941, Ras Seyoum insisted on the restoration of Tigrayan autonomy that was never materialized. For one Tigray was now ruled by an appointee from Showa (Alemayehu Tenna) and for another local notables known for being rivals to Seyoum were appointed in Adwa and Enderta. Seyoum was then a loser in between. The tax system, the introduction of Amharic in all state institutions and the unpopular governor were more than enough to create popular resentment that finally led to the unsuccessful resistance in 1943 (portrayed as kedemay Weyane [the first rebellion] by the TPLF). Its failure sealed at least temporarily the struggle for centralization and autonomy in favor of the former.
It is a pity that in some academic circles this unfortunate circumstance is very much undermined. Teshale, otherwise a great historian, in his attempt to address the ‘nationality question’ makes a distinction between ‘national’ and ‘regional’ level. He contends that only in the south can one speak of ‘Amhara domination’ because of the triple merger of nationality, religion and language in the person of the neftegna. At the national level, however, no special economic as well as political benefit accrued to Amharas distinct from other nationalities and therefore national oppression is merely reduced to linguistic oppression. There is even an argument that the government was not Amhara as such. However, the political, social and cultural foundation of the state remained to defend the nation-building project based on cultural integration. Besides, as already noted, the Amharas other than from Showa, although they were disappointed at the initial phase (the Gojjam rebellion of 1968) did not face the harsh realities that the Tigrayans went through. By associating themselves with the ruling elite from Showa they were able to secure jobs and derive some benefits. Economically, while in general little investment and economic progress was common throughout the country, the position in Tigray was even worse and the elite in Tigray relates this to Tigray’s ‘political emasculation’ and deliberate Amhara action. There was no single industrial development in the entire province even by Ethiopian standards. Culturally- Tigray although inhabited by Tigrayans of the same Semitic group with the Amharas, Tigrayans have their own distinct language and they are self-conscious. Yet they were forced to abandon the Tigrigna language in order to attend school and to secure a job. The ban was considered a symbol of Amhara domination. Taken in light of the assimilation agenda of the ruling elite, the measure was perceived as a symbol of Amhara domination and the eventual extinction of the Tigrayan identity. Language then became relevant not only in its own right but also as a surrogate for other issues like cultural preservation, equal access to state power and redefinition of the identity of the state. The center of the debate, one should note, is between the Amhara elite, which equates Amhara identity to Ethiopian identity, and the Tigrayan elite, which claims equality of all nationalities and perceives Ethiopia as home of all the diverse groups. Political and economic marginalization and the historic divide and rule were to further fuel resentment. These were the reasons for the radicalization of the Tigrayan elite.
Distinct from the ESM whose predominant view was to shape the struggle of the oppressed people along class lines, some of the University students from Tigray formed an association, which quickly evolved into a party, the TPLF on February 1975. Its purported aim was to defend the identity, dignity and interests of their nationality. Yet in its early stages, the Tigrayan student movement was not homogenous. Evidence seems to indicate that it harbored three different political tendencies. The first was an option to construct what they coined as ‘Greater Tigray’ that includes the Tigrigna speakers both in Tigray and Eritrea. Perhaps this was the agenda of the little known TLF. The second group was more in line with the ESM in suggesting that the liberation of Tigray should be seen in the context of liberation of Ethiopia, hence joined the EPRP. The third that was to be the basis of the TPLF focused on the liberation of Tigray both in terms of national and class, leaving the issue of post independence Tigray unsettled.
In the face of gloomy and unfavorable domestic and global circumstances those young university students determined to bring to an end the misery. Before it appeared as the only vanguard force in Tigray, it had to face the TLF, EDU and EPRP in its infant stage. First it faced the TLF, an organization, whose story is little known but is believed to have designed the Tigrayan cause as a struggle against colonialism, following the EPLF. For the TPLF, as far as records show, the Tigrayan cause was not defined as a colonial one, although it defined its struggle as one of self-determination of oppressed nationalities, secession/independence was an option but not its maximum objective. As one has rightly noted the post liberation political status of Tigray, separation and independence or a nation within a multicultural Ethiopian polity was not pre-determined, it was to be determined in due course.
Since its struggle was defined as a national one, the presence of multinational forces was viewed as impediment to its objective and it had to face the challenges from EDU (and of the EDU’s shadowy splinter group teranafit centralist) and EPRP. It was able to eliminate them certainly by force between 1976 and 1978. Since then Tigray remained the exclusive area of the TPLF’s military and political operation, a situation, which still remains unchanged.
As events unfolded, the Tigrayan cause seems to have been settled under a federal system in a multicultural Ethiopia. It is important to emphasize this point because in some corners, it is stated, the present federal structure is nothing but the resurgence of Tigrayan dynasty or the coming to power of the heirs of Yohannes. Merera’s major thesis in his PhD is to make a widely held view in the private press that everything is heaven in Tigray and the Tigrayans dominate the whole federal system. Indeed he argues that the present federal system is a guise for Tigrayan resurgence. However, his position suffers from two major setbacks. We earlier noted the problem of presenting mainstream national elites in the face of existing convergence of ideas. Certainly opinions are more complex than they appear in his presentation. As will be sufficiently described in this section, there is more convergence than divergence among the elites of the several nationality groups and the attempt to show so much divergence does not seem to be convincing. Another limitation is his articulation of the Tigrayan struggle as resurgence. Maybe this is a confusion resulting from a mix between his dissatisfaction with the TPLF/EPRDF led government and the much broader Tigrayan cause. One of the major contributions of the latter, among other things, is transformation of the Ethiopian ‘nation-state’ to a multicultural federal state. Given the above context, the national oppression seems to make some sense. The political and economic deprivation seems to be deliberate consequences of Showan attempts to hold its rival at bay.
It is interesting to note that the Tigrayan resistance, particularly after the 1974 Revolution seems to rather disprove the well-settled idea that the centers of conflict in many parts of the world including Ethiopia are the ones that are politically and economically deprived, in short the instrumental paradigm. The most effective and devastating resistance against the center came from Tigray, the birthplace of Ethiopian civilization and the mother of the authors of the Kibra Negast that provided the legitimizing basis for the Ethiopian state. It did not come from Afar or Gambela, although all raised their arms against the center. This is not an attempt to deny the political and economic drives behind it. It is simply to reiterate the point that not all political and economic deprivations lead to stiff resistance and there must be some additional reason to it. The fact that they can recite a lot from their proud history coupled with what some call "political entrepreneurs", that is, political elites who are able to translate the politico-economic and identity grievances into a political action are some of the additional factors.
So many things have been said about the success of the TPLF. Its organizational discipline, its determination and endurance, its capacity to mobilize the people on its side, an organization from within, not from exile, as the people say, the inability of the 1974 Revolution to bring any noticeable change, while it was able to take the ‘the steam of the revolution’ in the south by enacting the proclamation that granted land to the tiller are some of them. These factors among other things were able to withstand the old political elite and feudal culture in Tigray, the military with its huge war machine and the trouble of awarajawinet (internal diversity within Tigray) were subdued effectively. By creating coalitions with other ‘partners,’ the TPLF was able to forge EPRDF in its bid to control the political space in Ethiopia after it controlled the whole of Tigray. EPRDF became the most dominant force after the change of government in 1991 and responsible for state restructuring along federalism that grants nationalities with self-rule.
Thus we see that the ruling party has for long advocated that it is the oppression of nationalities that is at the heart of the crisis and the political and economic marginalization is a consequence rather than a cause. Although in the early 1970s there has been an intense competition between ethno-nationalist parties and class based parties, the former dominated the scene. The present ruling party, EPRDF as a coalition of ethno nationalist parties and as a main architect of the transition (1991-1994) and the 1995 Constitution long advocated for nationalities right to self-determination up to and including secession as a decisive remedy for the resolution of Ethiopia’s long standing problem of the “nationality question.” Yet, this in itself fails to underscore the point that in the end political and economic factors are crucial factors behind every conflict. Besides, this perspective fails to address adequately the problem of minorities within the different units and cities that often are inhabited by ethnically intermixed individuals. Thus an approach that combines the accommodation of diversity with genuine sharing of power and resources among the diverse groups and the commitment to human rights will better explain the success or failure of the state in multicultural societies in general and in Ethiopia in particular.
The Other Relevant Perspectives
The Views from the South
A very close but newly emerging view to the national ‘oppression’ thesis is the Southern perspective. In the competing nationalist perspective, a new regional force is emerging in Southern Ethiopia, an area that has long been marginalized. It is the homeland of more than fifty six ethnic groups with a combined population of more than 13 million. This is the region in which many of the authors at least agree on the point that until the 1974 Revolution and Derg’s proclamation of land to the tiller, thereby emancipating the bulk of the tenants and the landless from servitude, the Amhara from Showa, although not exclusively, with their neftegna, represented the worst form of class and national oppression for the bulk of the nationalities living in the south. Nationality, class and religion all combined in the person of the neftegna. The general political vision and perspective of the elite from this area, unity in diversity within greater Ethiopia, has become a serious challenge to the Oromo elite who seeks secession, and to the mainstream ruling elite who might seek asymmetrical relations with the South.
There are certainly several views emerging but at least two are dominant. There is the EPRDF-member SEPDF which shares more or less the same political program with the opposition SEPDC except on the issue of land and secession. The latter, supports the federal option but short of secession and also wants to privatize land. SEPDF has recently undertaken a lot of reforms, particularly after the TPLF crisis in 2001 and in 2002 merged some dozen ethnic fronts to form one movement. The attempt is to forge one party representing all nationalities. Despite troubling history, the region seems to be content with the federal option of unity in diversity.
Over all assessment of the federal experiment in the South exhibits both fear and hope. The fear is that there is continuous rivalry among some of the political elite for controlling regional power at the expense of others and that seems to be fueling those that felt marginalized at regional level to raise issues of further redrawing of new zones, Weredas and even new states. Thus carrying with it the threat of opening "Pandora's Box"- where to end once one begins restructuring the region with more than 56 ethno-linguistic groups. A newly emerging multicultural federation may need to remain flexible in order to adjust territorial boundaries to meet new ethno-linguistic demands which is an expected thing in holding together federation but too much flexibility may lead to the Nigerian federation's logic of fragmentation.
The hope and rather promising point about the South given its size and incorporation into main stream Ethiopian politics is the potential role that it can play in stabilizing the federal game. The South being composed of relatively smaller nationalities that benefit more from interdependence and some form of self-rule than from a unitary system and independence, have a major potential role to play in bringing equilibrium to the two potential threats of the Ethiopian federation: centralism (as reflected in the 20th century) and secession (as some political elites seem to be aspiring for it).
The Afar Region
The Afar constitute a pastoral people who occupy a vast territory in the north-eastern part of Ethiopia but they also live in Eritrea and Djibouti, because of the sad legacy of the colonial scramble for Africa. The northern portion of the Danakils was included under Eritrea by Italians. The hinterland of the southern portion and the Awash River valley was incorporated by Ethiopia while the gulf of Tajura became the French colony of Djibouti. In Ethiopia they are found inhabiting in the north-eastern lowlands, now delineated as the Afar region, one of the constituent regions, in the federal system. Before the change of government in 1991, the Ethiopian Afars lived divided in the administrative provinces of Showa, Harareghe, Wello, Tigray and Eritrea. Like the Somali, the Afars suffered from imperialist intrusion. As a region dominantly inhabited by Muslims the Afars also belong to the group of marginalized people by a state that defined itself along Christian religion.
It is stated that cordial relations existed between the center and the sultanate in Afar until the coming to power of Haile Selassie. Often, central governments’ interest in the Afar was mainly economic as it was an outlet to the outside world as well as a source of salt. At later stages the region became one of the centers of discoveries about the human origin including Dinknesh (Lucy). Thus the strategic location of the Afar along the coast, the existence of trade routes with the center and its potential as an entry point for external aggressors, forced the central government from antagonizing the Afars. Thus the sultanates enjoyed some level of autonomy.
This was to be changed with the introduction of commercial farming in the 1960s. This was indeed a turning point in the sense that after its introduction, the Afars lost a large area of land. There were attempts to handle the matter with care as the emperor was also interested in incorporating Djibouti, but it did not prevent from flourishing various types of parties, particularly after the 1974 Revolution. The Derg fueled the situation because the nationalization of all rural land not only led to the expropriation of the holding of the Ali Mirah, an influential sultanate, who had a large private holding but also deprived the Afars of land that could be used for dry season grazing. Sultan Ali Mirah fled to Saudi Arabia and that marked the end of friendly relations between the center and the Afars.
Like the situation in the south as well as the Oromos, there are several parties operating in present-day Afar regional state that evolved from the crisis of the 1970s, with differing perspectives about the past as well as their visions about the future. One of the first parties to be set up in opposition to the Derg’s harsh measure was the ALF led by the Sultanate’s son Hanfreh Ali Mirah. As the military was cornered by opposition from all corners, it tried to concede to some of the claims of the Afars for regional autonomy, which also had strategic advantages for the military in weakening the Eritrean cause. It was able to persuade some members of the ALF and caused its split in 1976 when a group of defectors left to form the Afar National Liberation Movement which found common ground with the regime in Addis Ababa and was granted a measure of control in the Danakil. The Derg mobilized the ANLM to its side and carved out an Assab autonomous region around the late 1980s. Yet this was not able to convince the opposition from the region and several parties remained suspicious of the new development.
Thus after 1991 the ALF whose main support came from the Awsa region, predominantly nomadic, dominated the transitional process as well as regional politics. However, internal family squabbles between the two brothers, the chairman of ALF and the then President Hanfreh Ali Mirah and Habib Ali Mirah, who was more hostile to the ruling party, led to confrontations with EPRDF. Close to the ALF is the ANLF that draws support from the Tigray speaking Afar in the Berahle area bordering the Tigray region and is said to be a faction that broke away from the ALF. It was influential in regional politics and stood second to APDO in the 1995-2000 elections for regional parliament. After March 1996 the regional presidency was transferred to APDO chairman Ismail Ali Siro. APDO evolved from TADO (Tigray Afar Democratic Organization), the Afars who border Tigray, and was restructured to represent the whole of Afar since 1992. Its main support came from the two zones that used to belong to Tigray and were predominantly cattle breeding. APDO was then able to break ALF’s power monopoly at the region as well as at the center.
In short, except the ARDUF, present circumstances in the Afar region seem to suggest that their claims can be satisfied with a genuine federal set-up that grants the Afars an autonomy of their own: an aspect of the nationality question and in this sense it converges with the southern, the bulk of the Oromo parties, except the OLF and all others that settle their case within unity in diversity. However, the fact that it is linked with the regional politics of the Horn because of its geographic ties with Eritrea and Djibouti and through the latter with Somalia, complicates the Afar issue.
The Somali Situation
Ethiopian Somali (Region five as it was known during the transition) includes not only the people living in the Ogaden but also the area in the north bordering Djibouti as well as Southern Bale and part of Southern Sidamo. The Ethiopian Somalis as Muslims claim that they have been subjected to triple oppression: national, religious and class, except perhaps a brief period during the time of Iyassu (1913-1916). Going back in history, although there are some historical records that show that historic Ethiopia had access to the port of Zeila, an ancient port on the Somali coast, there is no reliable evidence that indicates beyond a shadow of doubt of the inclusion of Ogaden into historic Ethiopia before the coming to power of Menlik. Accordingly, some of the parties who claim to represent the interest of the region have articulated their arguments along the ‘colonial’ thesis, following the Eritrean elite.
What is striking about the Ethiopian Somali case is that its cause, however genuine it may have been, is complicated by political developments in the Horn and particularly by the intervention of neighboring Somalia state. Right after the Somalia Republic was established as an independent state in the Horn in 1960 it embarked on an irredentist policy of bringing all the Somalis living in the three neighboring countries: namely Ethiopia, Kenya and Djibouti, hence the five star flag. To this effect it created and nurtured the WSLF (Western Somali Liberation Front) to represent the Somalis of the Ogaden and SALF (Somali Abo Liberation Front) to represent the Somalis in Bale and parts of southern Sidamo and some portions of the Oromos (which the Somali Republic thought were Somalis but mistakenly considered themselves as Oromos) in the early 1960s and 1970 respectively. Such an attempt was viewed by Ethiopia as a serious attack on its sovereignty and the confrontation led to moderate conflicts in Ogaden and Bale some time in the 1960s and to a full-scale war between the two countries in 1977. At all stages the United States and former USSR as well as Cuba were present on both sides supplying arms and even military support. Ethiopian military superiority effectively destroyed the Somali forces and the WSLF went into exile affiliating itself, as suspected, with the Siad Barr’s regime of Somalia. In 1980 the Derg was able to make a deal with the regime in Somalia about the Ogaden, which finally led to the death of the WSLF leading to the birth of another ONLF in 1984. The ONLF seemed to have rejected the vision of Greater Somalia by focusing to forge a distinct Ogaden, separate from Ethiopia as well as Somalia.
Contrary to common expectations of the Somalis as a nation, the Somalis exhibit a variety of intra-ethnic diversity, mainly based on clan. Even when central government’s interference in the region was very little during the early phase of the transition (1991-1994), they were divided into more than a dozen clan and lineage based groups, apart from the dominant Ogadenia clan. Some of them include the Issa and Gurgura, the Horiyal, Ishaq, Hawiye, Shekah and a few others who resisted such division but called on Somali unity/solidarity based on Islam.
Since the break up of the Somalia Republic, the Ethiopian Somalis then seem to face a dilemma between genuine autonomy within federal Ethiopia, creation of independent Ogadenia or joining one of the newly emerging ‘states.’ Like the situation in Afar and Oromia there are several contending parties in the region. We have the Western Somali Democratic Party (WSDP) mainly supported by the people in Ogaden and active in the regional politics during the 1995-2000 period and articulating a middle ground between the ESDL and the ONLF’s secession agenda. The latter seems to be divided between working with the government, playing a constructive opposition or insisting on the secession agenda. There is also the emerging Ethiopian Somali Democratic League set up in 1994 by merging some dozen Somali political and clan groups. This vision came from the late Dr. Abdul Mejid Hussein, a prominent Somali/Pan Ethiopian figure who believed the Somalis should stand together and solve their problems. In June 1998 ESDL merged with some remaining elements of the ONLF to form the Somali Peoples Democratic Party (SPDP). The SPDP and the ESDL seem to have made up their mind to work for a genuine autonomy within a federal Ethiopia and they are emerging as dominant political forces at regional as well as at federal level.
After considering the national oppression at length, it is perhaps appropriate to conclude with the following note of precaution. To argue that the conflict has to be able to be seen in a broader fashion that takes into account the cultural and identity element, apart from political and economic factors in the Ethiopian context is far from endorsing the idea that the whole conflict should be solely interpreted along this line. This approach like the instrumental model will lead to another narrow perspective and indeed that is the problem with the national oppression thesis. While explaining another dimension of the conflict, it fails to transcend it. Hence, when Abbink argues, ‘Ethnicity and its socio-political use are embroiled in political, social and economic issues and has to be addressed through the latter,’ the proponents of national oppression have no satisfactory answer. One other writer has equally and rightly so pointed that the nationality question might be one cause but certainly is not the exclusive one. ‘Oppression, exploitation, poverty, injustice are trans-ethnic and could be more adequately dealt with if they were given answers that are also trans-ethnic.’
To conclude this part, the challenge for the Ethiopian state and indeed for many other multicultural states as well, has been, remains today and will remain to be its ability to craft a state that is united but that at the same time recognizes diversity. It is a question of building unity from diversity from a multicultural state. It is for this reason that federalism as an ideology and federation as a political institution incorporating both unity and diversity while at the same time imposing a limit on both makes it attractive for Ethiopia. If the assertions made so far are true then the evidence also seems to hint that national self-determination as a solution to the nationality question, while it might deal with the question of diversity, needs to be considered along with the political and economic factors that the instrumentalists have rightly emphasized. This for sure will have implications, for instance, in structuring the units of the federation.
Given Ethiopia’s long existence as a de facto federal system, albeit under a monarchy, its diverse ethno-linguistic and religious groups and taking into account the fact that the Ethiopian state was in crisis for most of the 20th century mainly because of the concentration of power and resources at the center as well as because it failed to accommodate the diverse groups into the political process, then multicultural federalism remains the only defensible option to hold Ethiopia together. Federalism permits not only the existence of multiple identities under a single political union but also transcends the fixation with the nation-state and its limits in dealing with diversity. Federalism also breaks the politics of exclusion, as power sharing is inherent to it thereby creating opportunities for absorbing the contenders for power into the political process. More is said on this on a separate course on federalism.
Overall Conclusions on the Ethiopian Constitutional Development
If seen along Ogendo’s analysis of post independence African countries constitutions, there are important remarks that remain relevant even for understanding Ethiopia’s situation. One can state safely that both the 1931 and 1955 constitutions were imposed rather than outcomes resulting from due considerations of historical, economic, cultural and social realities of the Ethiopia. If Constitutions are meant to be laws in which the various aspirations and values of the public in general are expressed, that is, as covenants between the governor and the governed, a democratic expression of the will of the public, then, both constitutions fail to meet these requirements. It should be noted that constitutionalism as a culture, though a much broader notion, is very much linked with this aspect of constitution making. Both constitutions provided for supremacy of the Emperor than the law and not involve the participation of the Ethiopian people. Nor did the constitutions intend for limiting the powers of the Emperor as he remained supreme for more than four decades. The making of the 1987 constitution marked a new phase as there was an effort to engage the public at grass root level but because of the regime (a military junta) and what ever was promised in the constitution never realized in practice and thus remained merely on paper. The short span (only four years) and the civil war as well overshadowed its importance.
Another essential point related to the Ethiopian context is that there is a widely held view that considers constitutions merely as instruments for promoting the political will of the victorious ones/ruling elites of the time and not of the people per se and hence are viewed as instruments of submission, hence the saying “Negus Aykeses Semay Aytares”. Many of the constitutions have not been results of negotiated outcomes or of a publicly held consensus. We should note that all past constitutions were done away with unconstitutionally and no section of society ever tried to restore them. Thus constitutionalism is yet to take roots in Ethiopia.