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U
NCONSTITUTIONAL
C
ONSTITUTIONAL
A
MENDMENTS
I
N
E
THIOPIA
:
T
HE
P
RACTICE
U
NDER
V
EIL
A
ND
D
EVOID
O
F
A
W
ATCH
D
OG
Zelalem Eshetu Degifie
Abstract
The Constitution of the Federal Democratic
Republic of Ethiopia (FDRE) under Article
104 and 105 sets forth amending clauses for formal constitutional changes that sets
procedures to be observed in the process of constitutional amendments
: both initiation
and approval
. Such constitutional
provi
sions serve to confine the
power
to amend the
constitution within the prescribed legal requirements as well as help
to control arbitrary
changes to the constitution, which
consequently promotes constitutionalism within the
country.
The
FDRE Constitution ha
s been amended twice within these
twenty
years
. The
first amendment was made on Article 98 of the Constitution in 1997, and the second on
Article 103 (5) of the Constitution in 2005.
This study explores the practice of
such
constitutional amendments and the
ir constitutionality un
der the Ethiopian legal
context
.
The study
argues
that the first and the
second amendments
substantially contravened
procedural requirements
set
by the Constitution
, and hence
are unconstitutional
.
Moreover, the study also examines the institutional set up of the Ethiopian legal system
and finds that
neither the House of Federation
nor ordinary courts are appropriate
organs to review the constitutionality of constitutional amendments. Finally, the
study
recommends
that
amendments made on the FDRE Constitution
should be
published
,
and
institutional reforms to b
e carried out in order to (re
–
)
organize a watch dog body to
safeguard the Constitution against practice of unconstitutional amendments.
Keyw
ords:
amendment, constitution, Ethiopia,
House o
f Federation
,
judicial review
,
unconstitutionality
I.
I
NTRODUCTION
The Constitution of the Federal Democratic Republic of Ethiopia (FDRE) under Article 104
and 105 sets forth amending clauses for formal
constitutional changes.
1
These articles lay down
procedures which have to be observed in the process of constitutional amendments. These
procedures had been practically invoked while the Ethiopian Constitution
was
amended twice
in
the
past
twenty years
.
Accordingly, Article 98 of the Constitution has been amended so as to
change the spirit of concurrent power of taxation in to revenue sharing. Besides, Article 103(5) of
the Constitution has also been changed to extend the period for conducting national p
opulation
census to more than 10 years.
Lecturer at School of Law, and Director of Legal Service at Wollo University. LL.B. (Haramaya University), LL.M.
(Comparative Public Law and Good Governance, Ethiopian Civil Service University). The author is very grateful to
the reviewers for their inval
uable comments. All remaining errors, if any, are mine. The author can be reached at;
.
1
The
Federal Democratic Republic Of Ethiopia
(FDRE) CONSTITU
TION, Proclamation No. 1/1995,
FED.
NEG
ARIT
GAZETA, 1
st
Year No. 1, 1995
(herein after FDRE CONSTITUTION), Art 104.
60
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This scholarship intends to examine the constitutionality of these constitutional amendments
and their review mechanisms under the Ethiopian legal system based on analytical approaches.
This article has
three main
in
terrelated sections. Following this short introduction,
the
amendment
rules for changing the Ethiopian Constitution will be discussed. In connection, procedural and
substantive requirements for
constitutional change will
be
elaborated
.
The
Third
section
deals
with the concept of unconstitutional constitutional amendment under the Ethiopian legal system.
A particular focus is given to
the first and the second amendments made on Article 98 and 103(5)
of the FDRE Constitution
.
J
udicial review of amendments a
nd the question of competence as well
as grounds of review are explored
comparatively
under Se
c
tion
Four
.
More importantly, it looks
into the
appropriateness
of the House of Federation (HoF) as an umpiring institution to review
unconstitutional constit
utio
nal amendments in
Ethiopia. F
inal
ly, this
piece
closes
with some
concluding remarks.
II.
T
HE
A
MENDMENT
R
ULES
I
N
T
HE
E
THIOPIAN
C
ONSTITUTION
Amendment clauses are common features of contemporary democratic constitutions. More
importantly, this clause expressly
provides rules for formal constitutional changes that imply
amendments to be made only in accordance with the formula provided within the constitution.
2
This amending formula which is built
–
in the constitution serves to confine the right to amend
within th
e prescribed legal requirements as well as helps to control arbitrary changes to the
constitution, which consequently promotes constitutionalism within the country.
3
Although
present
–
day constitutions make use of a wide variety of amendment formulas, it oft
en comprises
of procedural and substantive requirements, by which formal changes to a constitution may occur.
A.
Procedural Requirements
The procedural aspects of an amendment formula have a formal character, and subsequently
make out the bodies engaged on th
e process of constitutional amendment along with the majority
required for amending the constitution. Typically, it deals with the rules of initiation and
ratification.
4
The rules of initiation delineate the organs having legitimate power to kick off
consti
tutional amendment proposals. However, they may not be necessarily made a
vailable within
a constitution.
5
In such cases, initiation is assumed to be carried out in the same manner as to
2
Teresa S. Collett,
Judicial Independence and Accountability in an Age of Unconstitutional Constitutional
Amendments,
41 CHICAGO L. J 327, 333 (2010);
see
also
Rosalind Dixon,
Cons
titutional Amendment Rules: A
C
omparative Perspective,
347
CHICAGO PUB. LAW. &
LEG. THEO. W. PAP. 96, at 96
–
98 (2011).
3
V
ICKI
J
ACKSON
&
M
ARK
T
USHNET
, COMPARATIVE CONSTITUTIONAL LAW 201
–
203, 309
–
310
(Cambridge University Press, 2
nd
e
d.,
2006
);
Charles Fombad
,
Limits on the Powers to Amend Constitutions: Recent
Trends in Africa and Their Potential Impact on Constitutionalism,
1, 20
–
21 (
Paper Presented at the World Congress
of Constitutional
Law, Athens, Greece, 11
–
15, June 2007
)
.
4
Richard Albert,
The Structure of Constitutional Amendment Rules
, 49
W
AKE
F
OREST
L.
R
EV
.
913,
936
–
40
(
2014)
.
5
Carlos Closa, Constitutional Rigidity and Procedures for Ratifying Constitutional Reforms in EU Member
States, at 291
–
297,
available at
:
Procedures_for_Rat
ifying_Constitutional_Reforms_in_EU_Member_States/
(accessed on 13 May 2015)
; See also
Fombad
, s
upra
note
3
,
at 20
–
2015]
U
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61
ordinary legislations. And consequently the parliamentary working proc
edures for amending
ordinary laws will be applied.
6
Under the Ethiopian legal system, the rules governing initiation of constitutional amendment
are provided under Article 104 of the Constitution. However, the organs having the power are not
clearly appare
nt from the reading of the provision which at first glance gives an impression that
the House of Peoples’ Representatives (HPR), the House of Federation (HoF) and one
–
thirds of
the State Councils of the member states of the federation have the authority to
support or
otherwise the proposals made by others in order to table
it
for discussion.
7
Although the title of
Article 104 is about initiation, the power provided under it is not that of proposing constitutional
amendments. Rather, it is the power to vote o
n amendment proposals, made by other bodies, for
the purpose of submitting them to discussion. This way of interpretation has been endorsed by
some authors like Dr. Monga Fombad who argued that the Ethiopian Constitution is silent on
defining the bodies ha
ving the power to initiate constitutional amendments and he concludes that
normal procedures for initiating amendments on ordinary legislations are applicable.
8
However, this view
departs
from what was conceived by the constitutional framers who
wished
to
give
the power to the House of Peoples’ Representatives, House of Federation and
State Councils
.
9
Inconsistently, this intention of the framers is not mirrored in the final text of the
Constitution,
which later on
reflected on the House of Peoples’ Represen
tatives and the House of
Federation Joint Organization of Work and Session Rules of Procedure Regulation No.2/2008.
10
This regulation under Article 9 provides that the HPR and HoF with a two
–
thirds majority may
initiate amendments. Besides, one
–
thirds of th
e State Councils can also propose the same.
Therefore, it is possible to conclude that in Ethiopia, the HPR, the HoF and State Councils have
the power to initiate constitutional amendments.
In addition, the Ethiopian Constitution under Article 104 entail
s amendment proposals to be
submitted for the general public. The purpose of this submission is for discussion and decision.
This constitutional provision states that; “
any proposal for constitutional amendment… shall be
submitted for discussion and decisi
on to the general public
”.
Under the Ethio
pian Constitution,
the phrase “
submitted for the general public for discussion and decision
” is not clear whether it
denotes referendum or not.
11
Although the Minute of the Constitutional Assembly is not clear
enough on this point, it may give some clues to understand the spirit of the provision. During
6
Id.
7
FDRE CONSTITUTION,
s
upra
note 1
, at Art. 104.
8
Fombad, s
upra
note 3,
at 10
–
11.
9
The Constitutional Assembly,
Minutes of Constitutional Assembly; Discussions and Debates on the Making of
the FDRE Constitution,
Vol. 5, (Unpublished,
Addis Ababa, Ethiopia, 1994)
.
10
The House of Peoples’ Representatives and the House of Federation Joint Organization of Work and Ses
sion
Rules of Procedure Regulation
,
Regulation No. 2/ 2008,
FED. NEGARIT GAZETA, Year 14, No.2.
Addis Ababa,
2008
(herein after The Joint Working Procedure Regulation).
11
Referendums are the most effective way of ensuring that the citizens are actively in
volved in the process of
constitu
tional amendment. See
A
SHOK
D
HAMIJA
,
NEED TO AMEND
A CONSTITUTION AND DOCTRINE OF
BASIC FEATURES,
298
–
310
(Revised 1
st
ed.,
Wadhwa and Company Nagpur Law Publisher, 2007)
.
62
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discussions
of constitutional making, the Chairman of the Constitutional
Structure
Committee
provided that
“as long as the H
ouses are the representatives of the
people, then the people
–
the
general public
–
is not directly required to participate in the amendment process.
”
12
Other
members of the assembly also argued that “the
people
ha
ve the right to be consulted on
amendment proposals.
”
13
These and similar debates
conducted at the time of constitutional making reveals that the role
of the people on the process of constitutional amendment is not giving binding decision in
a
form
of referendum. Rather, their role is mere consultation and discussion on the proposed
ame
ndments, by which they may contribute significant inputs to the decision making bodies.
Therefore, although referendum as a means of giving binding decision is not envisaged under the
Ethiopian Constitution, Article 104 requires the people to be notified a
nd consulted on the
amendment proposals. On top of this, the use of the word ‘shall’ under Article 104 indicates that
submission of an amendment proposal to the
general public is not an option left for agencies’
discretion but
a mandatory requirement that must be observed in the process of constitutional
change
.
The FDRE Constitution under Article 105 also provides rules for ratification of constitutional
amendments. It provides two different kinds of rules, each used to ratify
proposals relating
to
different matters. Amendment proposals relating
to
human rights and funda
mental freedoms
provided under Chapter T
hree of the Constitution, and the amending clause itself can be ratified
by the HPR and the HoF, sitting separately,
wit
h
a
two
–
thirds of majo
rity vote at each H
ouse.
Moreover, it requires such amendment proposals to be ratified by all State Councils of the
member states of the federation with a majority vote. However, amendment proposals pertaining
to other provisions of t
he Constitution can be ratified with a majority vote of two
–
thirds
at a joint
session of the two H
ouses (HPR and HoF) and with the support of two
–
thirds of the State
Councils with a majority vote at each regional state.
14
All these reveal that the amending
power under the Ethiopian legal system is characterized
by procedural limitations. As a result, the Constitution can formally be amended only by
institutions such as HPR, HoF and State Councils which must also exercise their powers in
accordance with the p
rocedures provided under the amendi
ng clauses.
An attempt to change the
Constitution in a manner different from that stipulated under the amending formula will be
unconstitutional.
12
Minutes of Constitutional Assembly,
s
upra
note 9.
የጉባኤው
ሊቀመንበር
ለቀረቡት
ጥያቄዎች
የህገ
መንግስት
ቅርጽ
ጉዳይ
ኮሚቴ
ምላሽ
እንዲሰጥባቸው
በጠየቁት
መሰረት
የኮሚቴው
ሰብሳቢ
ኢንጅነር
አብያሌ
ፍላቴ
በህገ
መንግስቱ
ላይ
ስለሚደረጉት
ማሻሻያዎች
የህዝቡ
አስተያየት
እንዴት
እንደሚጠየቅ
የቀረበውን
ጥያቄ
አስመልክተው
በሰጡት
ምላሽ
የፌደሬሽን
ምክር
ቤትና
የህዝብ
ተወካዮች
ምክር
ቤት
ህዝቡን
በቀጥታና
በተመጣጠነ
መልኩ
የሚወክሉት
አባሎቻቸው
የህዝቡን
ፍላጎት
የሚያንጸባርቁ
የህዝብ
ልሳን
በመሆናቸው
በህገ
መንግስቱ
ላይ
የሚቀርቡ
ማሻሻዎችን
ሊያጸድቁ
እንደሚችሉ፤
ከዚህም
አኳያ
ስለማሻሻያዎቹ
ህዝቡ
አስተያት
እንዲሰጥ
ላይጠየቅ
እንደሚችል
ገልጸዋል፡፡
13
Id.
አቶ
ሰለሞን
አበበ
የሚባሉ
ተወካይ
በሰጡት
ማብራሪያ
ላይ
በአንቀጽ
94 (
በረቂቁ
ላይ
ስለህገ
መንግስት
ማሻሻያ
የሚደነግገው
አንቀጽ
)
መሰረት
በሚቀርበው
ማሻሻያ
ሀሳቦች
ላይ
ህዝቡ
ሊወያይ
እንደሚችል
ገልጸዋል፡፡
14
THE FDRE CONSTITUTION,
Supra note
1, at Art. 105 (2).
2015]
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B.
Substantive Requirements
In addition to procedural requirements, the amending formula of some constitutions place
substantive
limitations
that prohibit
changes on certain provisions of the constitution.
15
These
constitutions set forth immutable principles which cannot be touched th
rough the amending
power.
16
Although the content of these provisions differ widely from country to country
,
a
comparative study conducted by Ashok Dhamija demonstrates that the
republican nature of the
state
, the fundamental rights and freedoms guaranteed to
citizens, human dignity, rule of law,
democratic structure of the state, territorial integrity of the state, separation of powers,
independence of courts, popular sovereignty, political pluralism, official language, sovereignty of
the state and the
amendi
ng clause itself are the
main and the most common subjects upon which
the limitation has been placed
.
17
No substantive limitation up on the amending power is provided under the Ethiopian
Constitution. The amending clauses, which are Article 104 and 105, are
so general and plenary
that gives power to the actors to amend the Constitution without any exception whatsoever. Had it
been intended to save certain matters from the operation of the amending power, it would have
been perfectly easy for the framers of t
he Constitution to make that indication clear by adding a
stipulation to that effect. Thus, the plain meaning of the amending clauses of the FDRE
Constitution suggests that every provision of the Constitution can be amended by following the
procedure prescribed under it.
And then literally it is possible to argue that there are no matters
under the Ethiopian Constitution which have been clearly provided to be beyond the reach of the
amending power. As a result, the amending power is not const
rained based on substan
tive
requirements in Ethiopia.
III.
U
NCONSTITUTIONAL
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A
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U
NDER
T
HE
E
THIOPIAN
L
EGAL
S
YSTEM
A.
The Practice of Constitutional Amendment in Ethiopia: General
Constitutional amendments may be unconstitutional for procedura
l as well as substantive reasons.
A constitutional amendment which fails to comply with the relevant procedural requirements may
not be held constitutional.
18
The same is true for amendments which are inconsistence with the
eternity clauses which define the
immutable elements of the constitution
.
At this time,
15
K
EMAL
G
OZLER
,
JUDICIAL REVIEW OF CONSTITUTIONAL AMENDMENTS; A COMPARATIVE
STUDY
(Ekin Press, Turkey, 2008)
,
at
55; Aharon Barak,
Unconstitutional Constitutional Amendments
,
44 ISRAEL
L. REV
.
321, 336
–
341
(2011); Ulrich Preuss,
The Implication of Eternity Clauses; The Germen Experience
,
44
ISRAEL L.
REV
.
429, 431
–
433
(2011).
16
Id
. Article 79 of the German Constitution provides that any constitutional amendment against the fed
eral nature
of the state, the inviolable status of human dignity, the principle of republican and democratic government, the rule of
law, popular sovereignty, the binding of the state authorities to the basic rights as set out in Articles 1 to 19, the
sepa
ration of powers and the right to resistance against tyranny is inadmissible.
17
D
HAMIJA
,
Supra note
11,
at
291.
18
Gray Jacobsohn,
Unconstitutional Constitution? A Comparative Perspective
, 4 IN’L J. OF CONS. L (2006)
460, 460
–
470; Rosalind Dixon,
Transitional Constitutionalism and Un
–
Constitutional Constitutional Amendments
,
394 CHICAGO PUB. L. & LEG. THEO. W. PAP.1,
at
1
–
8 (2011).
64
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amendments
could be declared unconstitutional on the basis that their content is at dissent with
the express substantive limitations, albeit they are enacted in accordance with the constitutionally
sti
pulated procedures.
19
Therefore, the procedural as well as the substantive requirements of the
amending formula must be observed in the process to keep away
from unconstitutional
constitutional
–
amendments.
As long as there are no expressly provided substant
ive limitations against the amending
power in Ethiopia, amendments may not be unconstitution
al due to substantive grounds.
However, there are possibilities for amendments to be unconstitutional because of procedural
reason
s.
As we have seen,
initiation
by the appropriate organ, public participation and approval
at HPR, HoF and State Councils in pursuance of the required majority are mandatory steps that
should be carried out to amend the Ethiopian Constitution.
Therefore, a
n
attempt to change the
Consti
tution in a way that departs from these procedural requirements would be held
unconstitutional.
Practically, the 1995 FDRE Constitution has been amended twice within these
twenty
years
.
The first amendment was made on Article 98 of the
Constitution in
1997
.
The second amendment
was also made on Article 103 (5) of the Constitution in 2005
. The author’s preliminary
observation
shows
that most of the citizens including political elites, constitutional law teachers,
law students, judges, prosecutors and even pa
rliamentary members have no information
about
such amendments, and hence
are unaware
of
the substance of the changes.
20
Astonishingly, the
‘official’ copies of the Constitution still reflect the original versions of the two provisions. The
copies distributed by the HPR or HoF, and other state entities, such as the National Human Rights
Commission,
do not
reflect the cha
nge
s.
Besides, some who have awareness about the amendments consider them as informal
changes.
21
But
the author believes that
the amendments are formal constitutional changes
intended to be carried out based on the amending clauses of the Constitution. The con
cerned
bodies tried to amend the constitutional provisions based on the formal procedures o
f the
Constitution
provided
under the amending clauses
than using interpretation or political
adaptation
.
22
Therefore, the first and the second amendments are formal
constitutional changes,
albeit the existence of some irregularities on the process.
19
Id
.
20
The observation is preliminary and not made based on systematic approach. It was made at random. For
instance a
mong seventy five 4
th
year l
aw students at Wollo University
,
School of Law in 2013 and 2014 which have
taken the course of constitutional law, no one knows about the fact that the constitution has been amended. Most of
the judges, attorneys and law instruc
tors which I have consulted randomly have no information about the fact that the
Constitution had been amended.
21
Solomon Neguise (PhD, Asso. Prof.) and Taddese Lencho (PhD) consider, in their works, amendments made
on Article 98 of the FDRE Constitution as informal changes. Dr.Solomon Neguise is the author of a book “Fiscal
Federalism in Ethiopian Ethnic
–
based Feder
al System’’ and teaches at Civil Service University and Addis Ababa
University, and conducting research on the area. Dr. Taddese Lencho is also a prominent scholar on tax law law.
See;
Taddese Lencho,
The Ethiopian Tax System: Exesess and Gaps
, 20 MICHIGAN
SATE INT’
L
L. REV. VoL. 328,
(2012);
Taddese Lencho,
Income Tax Assignment Under the Ethiopian Constitution: Issues to Worry About
, 4
MIZAN L. REV. 32,
(2010).
22
Besides the formal constitutional amendment mechanism that is carried out as per the constit
utionally
stipulated procedures, constitutional change can also be brought informally through constitutional interpretation and
2015]
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B.
The First Constitutional Amendment (1997)
Article 98 of the Ethiopian Constitution previously conferred concurrent legislative power over
taxation
to federal and state governments
. This original provision provided that:
Article 98
Concurrent Power of Taxation
(1)
The Federal Government and the States shall jointly levy and collect profit, sales,
excise, and personal income taxes on enterprises they jointly establish.
(2)
They shall jointly levy and collect taxes on the profit of companies and on dividends
due to
share
holders
.
(3)
They shall jointly levy and collect taxes
on incomes derived from large
–
scale mining
and all petroleum and gas operations and royalties on such operations.
Nevertheless, the first constitutional amendment made on the above provision changes the s
pirit
of concurrency in to revenue sharing that allows the specified taxes to be determined and
administered by the federal government while the constituent units share the proceeds from it
.
23
This amendment on Article 98 provides that:
Article 98
Concurren
t Power of Taxation
1.
Profit, sales, excise, and personal income taxes on enterprises jointly established by the
federal government and regional states;
2.
Taxes on the profit of companies and on
dividends due to share
holders and;
3.
Taxes on incomes derived from
large scale mining and all petroleum and gas operations
and royalties on such op
eration shall be levied by the f
ederal government, and the
proceeds will be divided between the federal government and states in pursuance of a
formula determined by the House
of Federation as provided under Arti
cle 62(7) of the
Constitution.
The federal government may delegate its power of tax collection to regional
states.
24
(Translation from Amharic
by the author
)
political adaptation. Constitutional interpretation brought gradual revision of the constitutional framework. By
judicial interp
retation, the existing provision in the constitution may get a new meaning without there being any
formal amendment to the constitution. Besides
,
unintended revision of the constitutional framework can also be
brought through political adaptation by the le
gislative and executive bodies
.
According
to Donald Lutz, when we
compare
these modes of constitutional changes, political adaptation and judicial interpretation reflects declining
degree of commitment to popular so
vereignty. See:
Donald Lutz,
Towards A Th
eory of Constitutional Amendment
,
88
AME. POL. SCI.
REV
. 355, 355
–
370 (
1994)
.
23
To understand the concept of concurrent power of taxation and revenue sharing see; Solomon Neguise,
FISCAL
FEDERALISM IN ETHIOPIA ETHNIC
–
BASED FEDERAL SYSTEM 63
–
67, 212
–
214 (R
evised ed.,
2008)
.
24
The FDRE House of Peoples’ Representatives,
Proclamations, Official Discussions and Resolutions Made by
the 1
st
HPR,
Vol.2, (1996/97, Un
published, HPR Li
brary, Addis Ababa, Ethiopia). T
he Amharic version
of the
amendment provides that
;
አንቀጽ
98
የጋራ
የታክስና
የግብር
ሥልጣን
1.
የፌደራል
መንግስትና
ክልሎች
በጋራ
በሚያቋቁሟቸው
የልማት
ድርጅቶች
ላይ
የሚጣለው
የንግድ
ትርፍ
ግብር፤
የሥራ
ግብርና
የሽያጭና
ኢክሳይስ
ታክስ፤
66
H
ARAMAYA
L
AW
R
EVIEW
[V
OL
.
4:1
The amendment proposal was initiated by the Ministry of Finance
and Economic Development
(MoFED
) that
pointed out the practical difficulty o
f
implementing the principle of concurrent
power of taxation as a ground for justifying the amendment proposal.
25
The proposal was tabled
for deliberation on March 6, 1997 to the
HPR which discussed on the amendment accordingly
and submitted it to the Parliamentary Legal Affairs Standing Committee for further scrutiny. The
standing committee scrutinized the amendment proposal in detail and talked about it thoroughly
with the concer
ned bodies like the Ministry of Finance and Economic Development and various
committees such as the Legal Affairs Committee, the Regional State Affairs Committee and the
Revenue Allocation Committee within the House of Federation.
26
The Parliamentary Legal
Affairs Standing Committee submitted its report to the general meeting of the
HPR
on April 7,
1997.
Besides, on its report, the committee recommended to the House for the approval of the
amendment proposal according to Article 104 of the Constitution.
27
Bas
ed on this
recommendation,
HPR
examined the amendment bill, and finally approved the proposal as
proclamation No. 71/97 with
a
unanimous vote.
28
This amendment bill was then directed to the HoF that deliberated on the proposal and
voted in
favor
of the amendment on April 9, 1997. At that time, the Minister of Finance and
Economic Development appeared on the floor of HoF to brief the members of the House of
Federation about the rationales of the amendment proposal
.
29
Lastly, the amendment bill was
submitted to the joint session of the two Houses which unanimously approved the proposal on
April 10, 1997. The Ministry of Finance and Economic Development also presented at the joint
meeting for briefing the members about the importance of the constituti
onal amendment
.
30
C.
The Second Constitutional Amendment (2004/2005)
The Ethiopian Constitution under Article 103 established a National Population Census
Commission which is authorized to conduct a population census periodically. The Constitution
further prov
ides the periodic interval
at
which the census must be conducted. Accordingly, the
national population census should have been conducted every ten years. The second constitutional
2.
በድርጅቶች
የንግድ
ትርፍ
ላይ
እና
በባለአክሲዮኖች
የትርፍ
ድርሻ
ላይ
የሚጣለው
ግብርና
የሽያጭ
ታክስ፤
3.
በከፍተኛ
የማእድን
ስራዎችና
በማንኛውም
የፔትሮሊየምና
ጋዝ
ሥራዎች
ላይ
የሚጣለው
የገቢ
ግብርና
የሮያሊቲ
ክፍ
ያዎች፤
የሚጣሉትና
የሚሰበሰቡት
በፌደራል
መንግስት
ሁኖ
ፌደራል
መንግስትና
ክልሎች
ገቢውን
የሚከፋፈሉበት
ቀመር
በህገ
መንግስቱ
አንቀጽ
62(7)
መሰረት
የፌደሬሽን
ምክር
ቤቱ
የሚወስነው
ይሆናል፡፡
የፌደራል
መንግስት
ግብርን
የመሰብሰብ
ስልጣን
ለክልሎች
በውክልና
መስጠት
ይችላል፡፡
25
Id
.
26
Id
.
27
Id
.
28
The FDRE House of Peoples’
Representatives,
Minutes of the
House of Peoples’ Representatives at the 2
nd
Year Working Time 38
th
Regular Secession,
(1997, Unpublished, HPR Library, Addis Ababa, Ethiopia
).
As the
minutes indicate, the Ministry of Finance
and Economic Development
briefed the members about the rational
es of
the
amendment and responded for those questions raised
by some parliamentary members.
Most of the questions
were actually about the impact of the am
endment on the right of regional s
tates.
29
The FDRE House of Federation,
Minutes
of the House of Federation on i
ts 1
st
Year
2
nd
Regular Secession
,
(1997, Un
published, HoF Library, Addis Ababa, Ethiopia). Most of the questions raised by the members were about
t
he relevance of the amendment.
Latter on it approved the matter with Seventy
Three suppor
ting vote, Three
opposition and
Five abstentions.
30
Federal Democratic Republi
c of Ethiopia House of Peoples’
Representatives and House of Federation 2
nd
Joint
Session at the 2
nd
Working Year
, (April 10, 1997, Un Published, HoF Library, Addis
Ababa, Ethiopia).
2015]
U
NCONSTITUTIONAL
C
ONSTITUTIONAL
A
MENDMENTS IN
E
THIOPIA
67
amendment changes this ten
years
’ time
table and allows it to be postponed as necessary. This
amendment proposal adds a phrase on
Article 103
(5) which provides:
“
However, if the HPR and HoF in a joint session ascertained the existence of a force
majeure to conduct the census, this period of te
n year may be prolonged as
necessary
.
31
(Translation from Amharic
by the author
)
The second constitutiona
l amendment was initiated by HPR
. As the 2005 national election and
national population census fell
on
the same fiscal year,
making it
difficult for the
country to run
both simultaneously due to financial constraints. Then, the HPR, based on the report and
recommendation given by the Parliamentary Legal Affairs Standing Committee, decided the
national population census to be put off until 2007 through cons
titutional amendment on
September10, 2003
.
32
This decision initiated the proposal for the second constitutional
amendment. The initiation was then directed to the HoF, which also discussed on the matter
thoroughly and voted in support of it, with four abstentions only, on October 6, 2003.
33
After thi
s juncture, the initiation which is supported by the two Houses was sent to the State
Councils of the member states of the federation seeking their approval according to Article 105 of
the Constitution. As a result, all except Gambella Regional State Counc
il responded positively for
the proposed constitutional amendment that is expressed through letters written to the
Houses.
34
Most of the State Councils responded on a reasonable period of time. Nine months was
the maximum period of time taken by Ti
gray and A
far Regional States.
Most of the regional
s
tates responded with in four months. Lastly, the amendment proposal was submitted to the joint
session of the two Houses which approved the proposal by the vote of all the members present
and voting, but with six
abstains, on October 5, 2004
.
35
D.
A Blemished
Practice of Constitutional Amendment
When we see the practice of constitutional amendment in Ethiopia, the process is found to be
disregarding essential procedures that such amendments need to follow. In those cas
es, the
31
The FDRE House of peoples’ Representatives,
Proclamations
,
Official Discussions and Resolutions Made By
the 2
nd
House of Peoples’
Representatives at i
ts 5
th
Working Year,
Vol. 1, (2005, Unpublished,
HPR Library, Addis
Ababa, Eth
iopia).
The Amharic version of the amendment provides that; “
ሆኖም
ግን
ቆጠራውን
ለማካሄድ
ከአቅም
በላይ
ችግር
ስለመኖሩ
የተወካዮች
ምክር
ቤትና
የፌደሬሽን
ምክር
ቤት
በጋራ
ስብሰባ
ካረጋገጡ
የቆጠራው
ዘመን
እንደሁኔታው
ሊራዘም
ይችላል
”
፡፡
32
The FDRE House of peoples’ Representatives,
Proclamations
,
Official Discussions and
Resolutions Made By
the 2
nd
House of Peoples’
Representatives at i
ts 3
rd
Working Year,
Vol. 8 (2003,
Unp
ublished, HPR Library, Addis
Ababa, Ethiopia).
33
The FDRE House of Federation,
Minutes of the 2
nd
House of Federation on i
ts 4
th
Working Year 1
st
Regula
r
Secession.
(October 6
–
7, 2003/4, Unpublished, HoF Library, Addis Ababa, Ethiopia).
34
Oromiya Re
gional State with Date 02
–
07
–
96
, No.Co/761/DA
–
01/96, Amhara Regional Sta
te with
Date
26/6/1996,No.
አ
/
ጉ
/
ወ
/3624/
መ
/
ፋ
–
1, Southern Nation National
ity and Peoples Re
gional State
with Date 19/06/96,No.
Kim01/Me/119/96,
Tigray Regional State with Date 05/11/1996,No.Ti/29/1/84,Benishangul Gumze Regi
onal State
with Date 26/06/96, No.1367/Me
–
01/96, Afar
Regional S
tate with Date 2/11/96
No
A4/5
and ,Harari Regional State
wi
th Date 8/7/96 No.3/Ha112/2/96 (
all the letters are available at the Library of HPR, Addis Ababa, Ethiopia)
.
35
The FDRE House of Peoples’ Representatives, Proclamations
, Official Discussions and Resolutions Made By
the 2
nd
House
of peoples’ Representative
s at i
ts 5
th
Working Year, Vol
