On the night of 4 November 2020, armed forces loyal to the Tigray People Liberation Front (TPLF) conducted a coordinated strike against several military bases of the Ethiopian National Defence Forces (ENDF) which are located in various parts of the Tigray state, one of the ten states of the Ethiopian federation.
The House of Federation, the institution with the mandate to serve as the guardian of the constitution and the federal system, ordered the federal government to intervene into the Tigray state and restore the constitutional order. The federal government has now intervened into the Tigray state and is conducting a surgical operation to enforce the rule of law.
Having characterised the operation as a civil war, which is in fact a mission to enforce the rule of law, many are now calling for cessation of hostilities and the start of negotiations and dialogue between the federal government and the TPLF.
Sitting for negotiation with the TPLF however would be a dereliction, on the part of the federal government, of a constitutional duty to protect and defend the constitutional order and the federal system.
The federal government has the duty to protect and defend the constitutional order of the country. This duty is in fact the first in the list of the powers and functions of the federal government (Article 51(1). There are various mechanisms that the federal government is authorized to use to protect and defend the constitution.
One of such mechanisms is declaring a state of emergency (Article 93(1)) while the other is a federal intervention into a state. The elements that have to be fulfilled to reach to the conclusion that the constitutional order has been endangered are defined under proclamation 359(2003) which regulates federal intervention. These are:
- armed uprising by a state
- resolving conflicts with another state or nation, nationality or people of another region with a non-peaceful means;
- disturbance of peace and security of the federal government
As mentioned, the House of Federation is empowered to order a federal intervention when the above elements are fulfilled (Article 62(9)). This power is given to the House of Federation for a reason. As institution in which all nations, nationalities and peoples of the country, which are the signatories of the constitutional covenant, are represented, this institution is assumed to jealously guard the autonomy of the states from undue federal interventions. It is presumed that the House of Federation would order federal intervention only when no other option is available to avert a threat against the constitutional order.
The actions of the TPLF fulfil every element that defines threatening the constitutional order of the country. First, it has been engaged in an armed uprising against the federal government by attacking the military bases of the ENDF and looting the weaponries in the military bases which are located in Tigray state. Second, by attacking the Amhara state, the TPLF led government of Tigray has engaged in a non-peaceful means of resolving disputes with another state. Third, by launching a military attack against the ENDF and the Amhara state it has disturbed the peace and security of the federal government.
The substantive requirements for federal intervention have, therefore, been fulfilled. When these elements are fulfilled, the House of Federation has the duty to order a federal intervention and the executive branch of the federal government has a constitutional obligation to intervene and rectify the problem. It does not have a constitutional option to sit with the perpetrators and negotiate. Negotiating with those threatening the constitutional order would be a dereliction of duty on the part of the federal government.
It is important to recall that the methods and procedures for federal intervention are not created now, after the dispute between the TPLF and the federal government arose. The framers of the constitution institutionalised a federal intervention at the time of the establishment of the federal system as a mechanism of protecting the system in an anticipation that such a threat against the federal system may occur at some point in the future. Moreover, the constitution and the laws which regulate federal interventions were adopted with the full and active participation of the TPLF. The TPLF cannot now argue that a federal intervention cannot or should not apply to it and that negotiations should take place.
In addition, to suggest that the federal government should sit for negotiation with the TPLF essentially means that the two parties are on equal legal and moral footing. The fact of the matter is that it is the TPLF which has violated the constitution and endangered the constitutional order.
The federal government is merely working towards restoring it. The two parties are hence by no means on equal legal and moral footing. Finally, it would set a dangerous precedent for the future if the federal government fails to restore the constitutional order by using its constitutional authority to do so and instead opt to negotiate with the TPLF. This would mean that any state government can henceforth defy the authority of the federal government with impunity; a situation that cannot be tolerated.
November/2020
Addis Ababa