Why Resist the Master Plan?: A Constitutional Legal Exploration

                     By Tsegaye R. Ararssa

  1. Introduction

When the Ethiopian government announced its readiness to implement its “Integrated Regional Development Plan” (the “Master Plan” for short) in the middle of April 2014, it provoked an immediate reaction from university students across the National Regional State of Oromia. Through the instrumentality of its security forces (such as the Federal and State Police, the Army, and the Special Forces), the Ethiopian government responded with brutal repression of the protests. In a series of campus-based and street protests that barely lasted for two weeks, over a hundred innocent Oromos are killed and thousands are jailed. To date, sporadic and spontaneous protest demonstrations continue to erupt in various parts of Oromia. Fuelled by anger triggered by the reckless words and utter disdain expressed in the course of a televised discussion between the Addis Ababa City Administration and the mayors and other executive heads of the surrounding towns over the Master Plan, and informed by history of killing, mutilation, dispossession, and political marginalization (all of which continue unabated), the protests were more a spontaneous reaction than a planned resistance.

Ignored by the state and local government, lied on by the national propaganda machine, neglected by international media and NGOs (with few exceptions), the students continue to resist. Diaspora Oromo communities, in a gesture of solidarity, voiced the plights of the students at home, and they took the occasion to ‘witness’ the violence once more. The non-Oromo Ethio-political elite, which always finds it difficult to speak out on atrocities perpetrated on Oromos,  rather characteristically, is still struggling with itself on how to express anger at the mass killings without siding with the cause of the Oromo. (Basking on the nation-wide challenge to the regime as a fertile political moment, they sought to make gestures of solidarity in the hope that they won’t be left out in the event that the tide gets traction thereby leading to the eventual crumbling of the regime.) But very few groups came out in public and condemn this state-orchestrated terror.  To be fair, they did well in voicing the plight of the six bloggers and three journalists arrested in the weeks following the start of the unrest. And that is to be appreciated. But the contrast was nothing less than disheartening to those who expected more than gestures of solidarity and had hoped that Oromo lives and rights would be valued as any other lives and rights in Ethiopia.

In this piece,  I seek to make a close reading of the constitutional-legal frame within which to situate the master Plan. Accordingly, first, I seek to explore the constitutional-legal context within which the Master Plan should be considered and analysed. Next, I will present a summary of four major constitutional-legal arguments against the Master Plan.

  1. Constitutional Context

The point of departure is the assumption that—the important debate about legitimacy aside—the constitution is ‘the supreme law of the land’ against which the validity of all laws, decisions, and practices is measured (art. 9).  According to the constitution, the Ethiopian state is federal in structure (arts 1 and 50-52). Ethiopia is a ‘nation of nations’ (Fasil 1997) that can be considered a multinational federation. In the language of the constitution, ‘Nations, Nationalities, and Peoples’ are the locus of sovereignty (art 8) and have the right to self-determination (art-39). As sovereign entities, they are the ‘building blocks’ that have a co-equal share in the founding of the contemporary Ethiopian polity. As subjects with the right to self-determination, they have, inter alia, the right to a ‘full measure of self-government’ (art 39(3)). Accordingly, most of these ‘nations,’ based on the four-fold criteria of settlement pattern, language, identity, and consent of the people concerned’ (art 46(1)), have established the nine states that constitute federal Ethiopia (art. 47), one of which is the state of Oromia (art.47(1)4))).

Addis Ababa (which Oromos call Finfinne) is designated as the “capital city of the federal” government (art 49(1)) whose ethnically diverse people have a right to self-government (art 49(2)) that is ultimately responsible to the federal government (art 49(3)). Being an Oromo city (albeit the constitution talks only about its ‘location’ in Oromia), it is also the capital city of the state of Oromia. This was stated in both the old and revised constitutions of Oromia (i.e. Art 6 of the 1995 constitution and Art 6 of the revised 2001 Constitution as amended in 2005). Owing to its being an Oromo city, the constitution clearly recognizes Oromia’s ‘special interest in Addis Ababa’ particularly in relation to social services, natural resources, and joint administrative matters (art 49(5)).

The articulation of the content of this special interest has been a matter of quiet controversy between the two governments on the one hand and between the Oromia government and the federal government on the other. The law envisaged to come to effect in order to articulate it was never made. Oromia’s request for the law fell on deaf ears. Oromia’s formal request for interpretation from the constitutional interpreter (the House of Federation cum Council of Constitutional Inquiry) was rejected by the latter on the ground that they do not give ‘advisory opinion’ in the absence of ‘case and controversy’. In the meantime, the formal and informal land-grabbing continued to spread into the neighbouring towns and districts. There being no formal institution that regulates inter-governmental relations—and the federal government being indifferent to the concerns of Oromia and the city government virtually absent from the scene since 2005—the matter became increasingly irritating to the Oromia officials. Frustrated, in 2009, the legislature of Oromia, the Caffee, established a ‘Special Zone’ of towns and districts that surround the city of Addis Ababa. This, they hoped, would give them a focused mode of operation in relation to the specific problems of these towns that are hard hit by the spill over effect of Addis Ababa’s problems (such as wanton destruction of the forest, environmental pollution due to emissions from factories and flower farms, illegal constructions and settlements, all of which was buttressed by absence of governance and corruption).

The boundary of the city was long agreed to be the boundary of the city as circumscribed in 1992 (as per Proclamation No.7/1992 which identified the city as one of the 14 Regions). According to the constitution, the boundaries of states is subject to review either through referendum organized in relation to self-determination (art 39), or through a formal constitutional amendment process (art 105(2)). To date, no such referendum was held[1] nor was there any attempt to amend the constitution.[2]

  1. Four Legal Arguments against the Master Plan:

The whole thrust of this piece is to argue that the Master Plan is legally indefensible. Contrary to what government lawyers claim (arguing that the plan is part of constitutional mandate to create one ‘economic’ and ‘political’ community),[3] the plan violates the letter and the spirit of the constitution on many levels. In this section, I present four arguments that indicate that the plan is unconstitutional. As I do so, I will touch upon the content, process, and consequence of the plan and its political implications.

3.1.Argument from Federalism

The plan violates the principle of federalism. In particular, it violates the principle of comity and mutual respect (art 50(8)) and the proper mode of managing intergovernmental relations pertaining to cities. This seems to emanate from a fundamental misunderstanding of federalism. In an unending turn of irony, the government is blaming the Oromo public for misunderstanding the ‘true goal’ of federalism. This misunderstanding is also compounded by the belief held among many that Addis Ababa belongs to the federal government. It also stems from mistaking the federation for a decentralized unitary system. Nothing typifies this more than the heavy reliance on the Master Plans of cities in a unitary country, namely Paris and Lyon of France.[4]

As indicated above, the Master Plan also wrongly conceives Addis Ababa as a federal territory when what it actually is, is the seat of the federal government. In other words, it is wrongly thought that Addis Ababa is the territory of the federal government. In reality, Addis Ababa is not a federal capital territory. It is an Oromo city which serves as the capital city of both the federal government and the government of Oromia.[5] That this has not been clearly spelt out in the constitution has caused an immense sense of insecurity and agitation among Oromos for a long time. The fact that the constitution speaks about it in terms of its ‘location in Oromia’ makes the issue of ownership ambiguous thereby reinforcing the sense of insecurity among Oromos. The ambiguity has also caused the confusion as to who the host is and who the guest is.

As a self-governing city ultimately accountable to the federal government, Addis Ababa is governed through its own city charter (which, legally, is expected to be revised every ten years). The city’s charter defines the powers and responsibilities of the different organs of the city government (the council, the Mayor and the Executive (the Cabinet/the Bureau Heads, and the General Managers), and the Municipality Court. It also defines the powers and responsibilities of the sub-cities (alias Kifle-Ketema) and districts (Kebeles). The city’s territorial limit is defined and the competence/jurisdiction of the city government has been clearly established. The boundary of the city ends at the outer limits of the ten Kifle-Ketemas.

As one of the nine constituent states of the Ethiopian federation, it has its own jurisdiction over its own bounded territory, with its own government that operates (ideally) in accordance with its own constitution. The powers of the states (exclusive and shared as concurrent) are clearly defined in the federal constitution (arts 51-52). The Constitution of Oromia is the supreme law of the territory of Oromia (art 9). Caffee Oromia is the legislature and the supreme political organ in the parliamentary system of government that the state has adopted for itself (art. 50(3) of FDRE and art 46 of the Oromia Constitution). As such, the Caffee is responsible for making any decision (legislative, financial, and political) over matters in its territory within its jurisdictional competence. Needless to say, it does not involve in the administration of the city of Addis Ababa—although one expression of its special interest is its involvement in joint administration of the city.[6]

Imposing a Master Plan designed by the Federal Government[7] on the towns of Oromia and incorporating these towns into Addis Ababa violates the principle of federalism. Ideally, if the city seeks to coordinate its development with the adjacent territories and townships, then it initiates a formal intergovernmental coordination of city development. It can invite the government of the State of Oromia to make a similar effort to raise the level of development of the surrounding cities so that necessary linkages are created in accordance with agreed terms of reference and agreed set of logistical and financial responsibilities. A joint inter-governmental body that oversees the legality, political propriety, financial efficiency, and administrative effectiveness of the project is established. This body could be an ad hoc bilateral inter-governmental relations (IGR) body or it could be a permanent and multilateral body that manages the intergovernmental relations under a pre-existing set of principles and rules. In Ethiopia, the latter framework does not exist.  The Master Plan under discussion now is prepared entirely by the Addis Ababa City government, to be run by a project team of the city overseen by a Board of senior officials of the two governments. That it is the city officials that train the Oromia officials about the implementation of the plan betrays the truth about who is in charge of the plan. The fact that some of the Oromia mayors raised questions about the need to consult the government and people of Oromia regarding the matter, even at this late stage, is another indication of how the task is an exclusively Addis Ababa business that is conducted at the expense of the excluded Oromia.

The fact that the plan speaks of incorporating 36 towns and 17 Woredas of Oromia to make them part of the Greater Addis Ababa territory is also a blatant attempt at modifying the territory of the state of Oromia unilaterally. This act of altering boundaries cannot normally happen without a formal constitutional amendment or through the self-determination act that is overseen by the house of federation under article 39(1) & (4) cum arts 62 of the Federal Constitution. Moreover, by subsuming these towns and Woredas of Oromia under Addis Ababa administration, the plan submerges and liquidates the long-demanded special interest of Oromia in the city. Instead of answering the question, this plan now makes the special interest irrelevant by further peripheralizing the state of Oromia from matters concerning the city or the wider country.

In short, the Master Plan is constitutionally indefensible because it: a) violates the principle of federal comity (mutual respect of the different orders of government); b) usurps the power/jurisdiction of the state of Oromia; c) alters the boundary of Oromia by incorporating 36 towns and 17 Woredas of the regional state of Oromia into Addis Ababa and subordinating their jurisdiction under the city government; and d) eliminates the special interest of Oromia and makes the question irrelevant.

3.2.The Master Plan violates the Procedure for Constitutional Amendment

In altering the boundaries of the state of Oromia and the city administration of Addis Ababa, the plan delves into measures that necessitate constitutional amendment. According to the constitution (arts 46-47), states are formed on the basis of settlement pattern, language, identity, and consent of the people concerned. In theory, this act of carving the constituent units is completed when the constitution was adopted in 1995. Presumably, it is based on these criteria that the units were established. The imperative of self-determination allows the possibility of forming a new unit in the federation and/or a separate state (outside of the federation). But when that happens, that effects a constitutional amendment. In order to change the boundaries of existing states, like the one that the Master Plan is forcing upon the State of Oromia, however, one needs to initiate a constitutional amendment in which one either changes the criteria of unit formation or just injects a clause that takes note of the boundaries of the concerned states in article 46-47. To do so without such an amendment or through an act of self-determination will challenge the integrity of the constitution. This Master Plan, by incorporating the new towns and woredas into Addis Ababa, alters too much without a formal constitutional amendment and as such is unconstitutional. This by passing of procedures of amendment will ultimately affect the integrity of the constitution and the order thereof. But in an ‘authoritarian constitutional system’ in which the text of the constitution is invoked more to legitimize sinister political goals than to advance just ideals, subverting the constitutional ideals through other laws and/or policies does not come as a surprise.

3.3.The Master Plan Violates Human Rights

More importantly, the Master Plan leads to the violation of individual rights of Oromo farmers, the collective rights of Oromos qua Oromos, and the rights of the State of Oromia. To begin with, the Master Plan violates the rights of Oromo farmers to socio-economic benefits. Accordingly, the Oromo farmers’ “right to obtain land without payment and the protection against eviction from their possession” (under art 40(6)) will be violated by the evictions that this Master Plan entails. Similarly, their right to livelihood, adequate living standard, chosen work, or generally, access to economic facilities (e.g. land) and social opportunities (including mother-tongue education) will be at risk in the event that this master Plan is implemented. All these rights, one notes, are elaborately stated in art 41 of the FDRE constitution.  The right of these farmers to participate in the design of development plans (arts 89(6)), is also affected by the master Plan. Moreover, the cultural rights of Oromos under art 41(9) such as preservation of historical and cultural legacies will be compromised in a city that has historically neglected and/or actively denigrated the Oromo culture and identity. Depending on the aim and content of the Master Plan (which is not clear so far in spite of the insistence of the officials to the contrary), the right of Oromo farmers to a “clean and healthy environment” (under art 44(1) cum art 92(1)) may be adversely affected. The right of displaced persons or those “whose livelihoods have been adversely affected as a result of programs” to “commensurate monetary or alternative means of compensation, including relocation with adequate state assistance” will be violated. This is because past experience shows that the state neither paid compensation nor provided relocation funds. The token of ‘compensation’ investors paid was neither adequate nor voluntary. If experience is something to go by, there is hardly a reason for anyone to expect that the displacements that come about because of the implementation of this plan will be any different. The fact that the “right to administrative justice” and the right to remedies is not explicitly recognized in the constitution compounds the problems that might arise in the event that the Master Plan is implemented.[8]

The second category of rights that the Master Plan violates pertains to the collective right of Oromos. If land is jointly owned by the “Nations, Nationalities, and Peoples” and the State (as per art. 40(3) cum 40(6)), the Master Plan defies the right of the Oromos as Oromos to their land.  In addition, the right of Oromo communities to development (art 43) and environment (art 44) in their own state will be violated. Moreover, as a matter of state policy objectives, the constitution also considers ‘peoples’ right to participation in policy formulation (art 90(6)) and to “consultation and expression of views” (art 92(3)). The fact that the process so far lacked participation of the public makes it evident that these rights of the Oromo are already violated and/or are exposed to violation. The Master Plan also continues the decades-long neglect of the special interest of the State of Oromia. In fact, it renders it irrelevant.

The principle of direct democracy in art 8 (3) demands that citizens not only engage in consultation but also protest government policies when they disagree with them.  The students’ and the peoples’ protest should not have been met with killings, shootings, and arrests and detentions. The junior Oromo officials’ objection to the Master Plan in the training sessions shouldn’t have been met with reprisals. That the protest to resist the implementation of the Master Plan has led to arbitrary killings, injuries, arrests, and detentions implicates it not only in a blatant defiance of peoples’ voices but also in a gross violation of human rights of Oromo citizens.

3.4.The Master Plan Ignores State Duty to ensure Good Governance

Transparency and accountability are the epitome of good governance. The Ethiopian government officials make a frequent use of the term to justify almost any measure they take. In fact, most of their policies are justified in the name of enhancing development and ensuring good governance.[9] Constitutionally speaking, the state has the obligation to conduct its affairs in a transparent and accountable manner. Thus, according to article 12 of (both the FDRE and Oromia) constitution, “the conduct of government shall be transparent (1). Any public official or an elected representative is accountable for any failure in official duties (2).”That is to say that, first, the conduct of government (i.e., its deliberations, decisions, and actions) is done openly before a watching public. Policies, laws, programs, and measures adopted by state are expected to be made available to the public. To ensure accountability, the officials are expected to listen to the peoples’ views, be responsive to the public’s demands, and take responsibility for such policies, laws, programs, and measures (especially if they have adverse consequences for the people).

The Master Plan’s design is shrouded in secrecy. To date, despite all efforts, I could not trace the authoritative version of the Master Plan document that also explains the goals and objectives, the rationales, the enabling/disabling legal environment, etc. Nor could I find a person who is in possession of the document. My attempt to make a close reading of the Master Plan and to make a comprehensive content-context-process analysis is compromised because of the unavailability of the document.[10] The process was thus hardly transparent.

To date, the government did not assume responsibility for the adverse consequences that flew from the Master Plan. After brutal repression of the protest by the security forces, the officials have been trying to persuade the public about the “supreme importance” of the plan and to demand that people should not listen to the distraction by “some external forces seeking to make political gains” out of this unrest, forces that want to disrupt “our development”. The government officials repeatedly suggested that the Oromo public are misinformed and agitated by ‘others’. They are thus conducting a series of meetings “to correct the public’s misunderstanding of the matter.” No measure is taken to bring to justice the security forces that went on a rampage of shooting. Not even a commission of inquiry is instituted. No government official expressed regret[11] or apology for the death of innocent students, children and other protestors. No government official came out to make any statement showing a willingness to rethink the Master Plan. This refusal to take responsibility and to be accountable to the public may exacerbate the tension impacting negatively on the peace and stability of the country in general. While that does not come as a surprise to people constantly living in an overly securitized state, to legal professionals, the absence of any gesture in the direction of ensuring accountability suggests the need for us to consider international tribunals before which the officials should be held accountable personally as individuals and collectively as a government.

  1. Conclusion

In this piece, an attempt is made to make a close reading of the constitutional frame within which to analyse the Master Plan fiasco and the deadly consequences that emerged therefrom. By showing how the plan is against the principle of federal comity and by demonstrating its incompatibility with the federal structure of the contemporary state; by showing how the Plan destabilizes the integrity of the constitutional order by neglecting the procedural rules for constitutional amendment; through identifying the human rights (individual and collective) that the Master Plan will put at risk; and by discussing how the design and implementation of the plan is shrouded in secrecy and the consequent defiance of the constitutional principle of transparency and accountability, an attempt is made to present an argument that the plan is constitutionally-legally indefensible. It is important to note that the invocation of development as an overarching goal does not justify the inappropriateness of the plan or the massive violation of the rights of the displaced farmers and of the protestors that held demonstrations to resist the implementation of the master plan. In a ‘constitutional’ order that supposedly recognizes the importance of the voice and votes of the peoples of Ethiopia (let alone in one where they are sovereign), to protest a policy would be a mere exercise of a right, one that helps to overcome the democratic deficits of a representative government, not a condition that will render a citizen an enemy to be eliminated by all means necessary (including murder and torture by Special Forces of the Ethiopian army).

The announcement of the Master Plan has led to another round of killing and arrests of the Oromo youth. Ethiopian jails are beefed up yet more. Oromia is subjected to a continued state terror. Ethiopia is fast becoming a concentration camp of Oromos. But Oromo national resistance is also taking a national scale and continuing to haunt Ethiopia once more. Coming back in resilience, Oromo nationalism refuses to die, defies the repression, and returns to the Ethiopian scene once more.

The protest has brought to light several other questions that were simmering underground. The demand for legal articulation and enforcement of Oromia’s special interest in Addis Ababa was raised. The long-held demand to make Afaan Oromo a co-equal working language of the Federal government was also raised. The call for the demolition of the statue of Emperor Menelik II, the demand to bring Tewodros Kassahun (Tedy Afro) to justice for his controversial claim that Menelik’s war of conquest was “a Holy war made to unite the country”, the demand to see those who denigrated the Oromo people and abused the Oromo athletes in the All-Ethiopian Sports tournament in Bahr Dar brought to justice, and other demands were aired in the course of these protests. The fact that these and other issues are expressed with this intensity and rage should spell out to the government that Ethiopia has yet to adequately respond to “the question of nationalities” especially to the question of the Oromos. As ever, in its response to the protests, Ethiopia demonstrated that it did not know how to handle peoples’ demand politically. Of course it does know how to handle it militarily. But then, one needs to ask: when will these men in the uniform (the soldiers) face and bow to the men in robes (the judges)? When will the men in suits (the politicians) face and bow to the men in robes (the judges)? When will the law (with all its limitations and its embeddedness in politics) take precedence over politics as policing? Only time will tell.

References

Fasil Nahum, Constitution for a Nation of Nations. Trenton: Red Sea Press, 1997.

Federal Democratic Republic of Ethiopia (FDRE) Constitution, Negarit Gazetta, Proclamation No. 1/1995,1995.

The Constitution of the State of Oromia, Magalata Oromiya  Labsii Lakk.1/1995.

The Revised Constitution of the State of Oromia, 2001 (as amended in 2005).

 

 

[1] The closest we came was when the Coalition for Unity and Democracy (CUD) was rumoured to want to hold a referendum about the identity of the city (politically aimed to delink it from Oromia) in the wake of its electoral success in 2005.

[2] No constitutional amendment was considered so far save the one (in 2004/5) pertaining to Parliament’s power to postpone the year of census whenever it coincides with election year.

[3] In a televised interview of a lawyer (named Tesfaye Neway) in May 2014, it was argued that the ultimate goal of the federalism is to build one economic and political community. (Seehttp://www.youtube.com/watch?v=CKsseT1KtJw, accessed on 3 June 2014). The preamble of the constitution of the Federal Democratic Republic of Ethiopia (FDRE) indicates, among other things, that the nations, nationalities, and peoples of Ethiopia, exercising their right to self-determination, have agreed to build one political community based on rule of law, peace, democracy and socio-economic development in the context of the right to equality and non-discrimination. Note that self-determination is the organizing principle that is constitutive of the polity and its foundational principles identified above. The Preamble also talks about the need to build ‘one economic community’ that can enhance mutually supportive relations to effect respect for human rights and to pursue collective interest. These provisos of the preamble are conveniently used by government officials to claim that the overarching goal of the federal dispensation is to consolidate political unity and to create one big market that is indifferent to ethno-national diversity and the federal structure that seeks to respond to the challenge of diversity. This is a misreading of the constitution. This is aside from the putative argument one can make by insisting on the cardinal principle of constitutional interpretation: preambles are not part of the constitution. As such, the principles therein cannot be invoked as legally binding rules. At best, they can only serve as a framework of understanding the constitution.

[4] A government power point prepared for training purposes in June 2013 indicates that the foreign experience shows the same trend in Western Europe, in some regions in China (i.e., Hong Kong, Macau, and Hunan) and some cities in Africa such as Greater Lagos, Greater Johannesburg, and Greater Cairo.

[5] From 1991-2003, Addis Ababa was the capital city of Oromia. In 2004, the Federal Government forced the government of Oromia out of Addis Ababa and the government was relocated to Adama. In the wake of the 2005 election, the Federal Government decided that the Oromia Government relocate again to Addis Ababa. From 2005 to date, Addis Ababa serves as the capital city of Oromia. The constitutional provision relating to the capital city of the State of Oromia has been amended twice.

[6] Article 49 (5) of the constitution reads as follows: “The special interest of the State of Oromia in Addis Ababa, regarding the provision of social services or the utilization of natural resources and other similar matters, as  well as joint administrative matters arising from the location of Addis Ababa within the state of Oromia, shall be respected. Particulars shall be determined by law.”

[7] Contrary to this, a series of interviews by the political leaders (e.g. Kumaa Dammaqsaa, Abba Dulaa Gammadaa, Muktar Kadir, Abdulaziz Mohammed, etc) and the architect involved in the design, Matheos Asfaw, insist that the Master Plan is a joint project designed by the two governments. Even if that is the case, how can one ignore the asymmetry of power between the two? We should also note that this new raft of interviews was given to quell the unrest and dampen the resistance staged by the Oromo public.

[8] Not, however, that there is the general right of access to justice under Article 37 of the Federal Constitution and its State equivalent.

[9] Even the massive constitutional revisions of the National Regional States between 2001 and 2002 were justified on these two grounds. Of course the political motivation for this is rooted in the splinter that happened within the Tigray Peoples’ Liberation Front (TPLF), during which time the ‘Splinter Group’ exploited the absence of the principle of separation of powers in the State Constitutions to easily bring some of the States Presidents to their sides. Between 1995 and 2001, the State presidents were also chairmen of the State Legislatures. At the time, there was no office of the Speaker. The result was that whoever has managed to woo the presidents to her/his side will have taken the state. And some of the members of the Splinter did in deed manage to woo Presidents Abate Kisho of the SNNPRS and Kumaa Damaqsaa of Oromia to their side.

[10] Even for the purpose of this analysis, I had to depend on a set of Power Point presentations prepared in June 2013 to help facilitate a training conducted on the Master Plan. The slides are available with the author.

[11] Abbaa Duulaa Gammadaa came close to expressing regret in radio interview he gave to the Voice of America (VOA), Amharic service.

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